Plaintiff moves for an Order granting summary judgment pursuant to CPLR §3212 in favor of plaintiff and against defendant in the sum of $15,953.27 plus interest from 9/29/09, together with the costs and disbursements of this action.

This is an action to recover the balance allegedly due pursuant to a Retail Installment Contract dated February 20, 2007 (the "Contract"), entered into between defendant as Buyer and Marinemax Surfside3 as Seller, in connection with the purchase and sale of a boat. [See Motion, Exh. B.] Plaintiff brings this action as the Seller's Assignee under the Contract and Security Agreement.

The Contract states a purchase price of $17,141.03, with financing in the amount of $15,141.03. The payment schedule contemplates 144 equal monthly installments of $183.12 commencing on March 22, 2007, for total payments in the amount of $26,369.28. [*2]

In support of its motion, plaintiff submits the Affidavit of Inez I. Girbac ("Girbac"), sworn to on January 13, 2011 ("Girbac Affidavit"). According to the Girbac Affidavit: (i) defendant defaulted in payment, leaving an outstanding balance of $14,880.61, as of September 28, 2009; (ii) the boat was repossessed and sold at public auction for the sum of $5,250.00; (iii) in connection with the sale, plaintiff incurred expenses in the sums of $1,209.00 for repossession fees; $3,150.36 for storage, $1,784.22 for repairs and $150 for commission; (iv) after applying the net proceeds of the sale to defendant's account, there remained a net balance due of $15,924.19.

The Court finds that plaintiff has not demonstrated, prima facie, its right to judgment as a matter of law. See CPLR §3212; Alvarez v. Prospect Hosp., 68 NY2d 320, 324. Plaintiff relies primarily, if not solely, upon the Girbac Affidavit to establish its case. There is no documentation to substantiate the facts alleged or the derivation of the balance due. There are no bills, statements or receipts evidencing defendant's payment history, the amount recovered upon sale of the boat, or the fees and expenses allegedly incurred. Plaintiff attaches as "Exhibit C" seven pages that appear to be a computer print-out relating to defendant's account, but this attachment is neither authenticated nor explained, and, as such, is devoid of probative value.

The lack of documentary substantiation is particularly troubling in view of the insufficiency of the Girbac Affidavit. First, it is unclear from the Girbac Affidavit whether Girbac was in a position to have, and did in fact have, firsthand knowledge of the facts asserted. The Girbac Affidavit appears to be a form on which Girbac's name was handwritten, after the fact, in a space left blank for that purpose. It contains boilerplate language stating that Girbac is an "officer" of plaintiff, and that she derives her knowledge from "examination of the books and records of the plaintiff maintained in the regular course of business under my supervision and control." The lack of specificity regarding Girbac's role and the source of her knowledge raises the spectre of the recent "robosigning" scandal. Although the Court does not reject the Girbac Affidavit on that basis, it does compel the Court to apply heightened scrutiny.

Second, the Girbac Affidavit is vague and conclusory. It does not provide the dates on which any of the significant events occurred, including the date(s) of default, the date of acceleration of the loan, the date of repossession, or the date of sale. It does not explain the derivation of the balance allegedly due as of September 28, 2009, including specific information regarding defendant's payment history and charges to his account. It does not provide any detail regarding the circumstances of the sale. Such deficiencies would not be fatal if competent evidence were provided to substantiate and complete the proof. [*3]

Finally, the Girbac Affidavit is marred by errors which, even if typographical, cast doubt upon the integrity of the whole. For example, Paragraph 3 states that the Retail Installment Contract was executed in connection with the purchase of an automobile. Paragraph 2 states that "[p]laintiff is not proceeding at this time against defendant, as a default judgment has already been entered against him." Paragraph 6 states that the balance due is ($15,924.19), which differs from the balance alleged in both the Complaint and the Notice of Motion ($15,953.27). This discrepancy, if not an error, is nonetheless unexplained.

The defects in the Girbac Affidavit render it insufficient, standing alone, to support a prima facie right to judgment as a matter of law. Accordingly, the Court need not consider the sufficiency of defendant's papers. Alvarez, 68 NY2d at 324. Althoughdefendant submits no evidence in admissible form, the burden to do so has not arisen. Id.

The Court notes that defendant has submitted a Memorandum of Law in opposition to the motion, which raises issues regarding whether or not the sale of the boat was done in a commercially reasonable manner pursuant to UCC Article 9, and if not, how that affects plaintiff's right to recover a deficiency. See, e.g., Ford Motor Credit Co., Inc. v. Racwell Constr., Inc., 24 AD3d 500. The Court need not consider those questions in view of its determination herein. In any subsequent application for summary judgment, however, plaintiff should address the application of UCC Article 9 to the facts of this case.

Based upon the foregoing, it is

ORDERED, that plaintiff's motion for summary judgment pursuant to CPLR §3212 is denied, without prejudice.

This constitutes the Order of the Court. Plaintiff shall serve a copy of this Order upon defendant forthwith upon receipt from any source, and shall provide proof of such service to the Court on or before any subsequent application.

Dated: ______________________________________________________

J.S.C.