NY SCARLETTE SANCE v. State Farm, Defendant(s). (2026)

Recitation, as required by CPLR § 2219(a) of the papers considered in review of this Motion:

Papers

Notice of Motion & Aff Ann

Defendant's MSJ:NYSCEF 4-14

Plaintiff's Opp:NYSCEF 3

Defendant's Reply: NYSCEF 15

Memoranda of Law: NYSCEF 17, 18

Upon the foregoing cited papers and pursuant to CPLR § 3212, the Decision and Order on Defendant's Motion for Summary Judgment after oral argument is as follows:

Defendant's motion for summary judgment is granted in its entirety, and Plaintiff's complaint is dismissed with prejudice. Defendant demonstrated Plaintiff's non-appearance at two duly scheduled EUOs, which Plaintiff failed to sufficiently rebut.

Plaintiff attempted to raise an issue of fact with respect to Defendant's standard mailing procedure through three rebuttal affidavits submitted by Defendant in an unrelated matter. Plaintiff further submitted to the Court that the rebuttal affidavits were admissible pursuant to Wells Fargo Bank, N.A. v Ciurleo, 2025 NY Slip Op 07039 (2d Dep't 2025) and could be used to impeach a witness on a prior inconsistent statement pursuant to CPLR § 4514. Plaintiff's reliance thereto is misplaced.

In Wells Fargo, the plaintiff submitted an affidavit establishing possession of a mortgage note in order to demonstrate standing in a foreclosure proceeding. In response, the defendant submitted a lost note affidavit previously signed by the plaintiff related to the same exact property in order to defeat the plaintiff's claim of standing. The Court accepted the extrinsic affidavit because it related to the same subject matter as the instant case (i.e. the plaintiff's standing with respect to the same exact property at issue). Similarly, in Aspen Props. Grp., LLC v Santoro, 240 AD3d 839, 841, 241 NYS 3d 74, 76 (2025), the Second Department found that the summons and complaint from a prior action barred the plaintiff's recovery in the present action because the document demonstrated that the same exact debt was at issue in both cases.

Here, Defendant satisfied its prima facie burden with its standard mailing procedure affidavits from Lisa Edwards to establish proof of mailing. Though the rebuttal affidavits proffered by Plaintiff may be admissible in form pursuant to CPLR § 3212 (b), they are irrelevant and insufficient to rebut that Defendant failed to mail the letters nor that the Provider or Assignee did not receive the letters. Plaintiff's proffered rebuttal affidavits claiming inconsistent mailing procedures are for an unrelated case with a different set of facts and defenses - the instant case was predicated on EUO Non-appearance defense, while the Plaintiff's proffered rebuttal affidavits were for defenses predicated upon wage claims, peer review claims, and "other" verification claims. Notably, when submitting the rebuttal affidavits, Plaintiff failed to append the pleadings and papers for the unrelated matter to authenticate the three affidavits.

Further, Plaintiff's CPLR § 4514 argument is also rejected. Plaintiff admitted that the issue raised by the rebuttal affidavits was whether or not Defendant used Pitney Bowes Presort Services ("Pitney Bowes") in order to impeach Defendant's witness on a prior inconsistent statement. This purpose is explicitly prohibited by the Court of Appeals. In Badr v Hogan, 75 NY2d 629, 635, 554 NE2d 890, 893 (1990), the Court of Appeals prohibited the use of extrinsic evidence in order to impeach a witness on a collateral issue. There is no evidence before the Court that Pitney Bowes was used in the instant case to warrant the need of an affidavit from a Pitney Bowes representative. Moreover, Plaintiff failed to proffer direct evidence by affiant with personal knowledge that it did not receive the letters or denials at issue. Thus, the particular use of Pitney Bowes in relation to these letters and denials would be a collateral issue at best, making Plaintiff's attempt to impeach the witness through these affidavits impermissible. Therefore, the Court rejects the rebuttal affidavits submitted by Plaintiff as meeting its shifted burden.

Insofar as Plaintiff has failed to provide admissible rebuttal evidence to bear its burden, the Court finds that Defendant has sufficiently met its prima facie burden for judgment as a matter of law, which is not rebutted. Thus, Plaintiff's complaint is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Dated: July 28, 2026

Brooklyn, New York

Hon. SANDRA ELENA ROPER

Civil Court Kings County

Sandra Elena Roper, J.