IT IS HEREBY ORDERED that plaintiff's application for an order striking the defendant's answer and awarding the plaintiff summary judgment for the amount demanded in the complaint pursuant to CPLR §3212, is denied. [*2]

The test to be applied to a motion for summary judgment is whether there are genuine issues which would require resolution by a trier of fact Hartford Accident & Indem. Co. v. Wesolowski, 33 NY2d 169 (NY 1973); Dyckman v. Barrett, 187 AD2d 553 (N.Y.AD2d Dept. 1992). Issue finding, rather than determination, is the Court's role and the drastic relief sought can only be granted when it is clear that no triable issue of fact exists Andre v. Pomeroy,35 NY2d 361 (NY 1974); Barclay v. Denckla, 182 AD2d 658 (N.Y.AD2d Dept. 1992).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Zuckerman v. City of New York, 49 NY2d 557, 562 (NY 1980); Sillman v. Twentieth Century-Fox Film Corp. 3 NY2d 395, 404 (NY 1957). Plaintiff must show that the defenses lack merit.

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Only after plaintiff makes a prima facie showing of entitlement to judgment as a matter of law (by tendering sufficient evidence to demonstrate the absence of any material issue of fact) does the burden shift to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action. Zuckerman v. City of New York, 49 NY2d 557 (NY 1980).

In order to defeat a motion for summary judgment, a party opposing such application must lay bare his proof, in evidentiary form. Conclusory allegations are insufficient to defeat the motion. See, Friends of Animals, Inc. v. Associated Fur Mfrs.Inc., 46 NY2d 1065 (NY 1979); Burns v. City of Poughkeepsie, 293 AD2d 435 ( N.Y.AD2d Dept 2002).

New York Personal Property Law § 337

New York CPLR § 4544

The plaintiff has submitted proof which if accepted as competent evidence proves the allegations made. Absent an evidentiary or other disqualifying objection, such proof would establish a prima facie case entitling the plaintiff to judgment as a matter of law. In opposition, the defendant has submitted a notarized statement which raises the issue of the small size of the type in the printed automobile lease. While not expressly stated, the defendant appears to be asserting his rights as provided in Article 9 of the New York Personal Property Law §337 (2) and CPLR § 4544 which provides as follows:

Sec. 337 (2)

"A retail lease agreement shall be in writing and, except as otherwise provided in subdivision two [*3]of section three hundred forty five of this article, signed contemporaneously by the lessor and the lessee. Except as provided in sections three hundred thirty six of this article, a retail lease agreement shall contain in a single document all the agreements of the parties. The printed portion of the agreement shall be printed in at least eight point type in ink that contrasts with the paper used. The agreement shall contain the following items printed or written in a size equal to at least ten-point bold

type. . ." (Emphasis added).

Sec. 4544

"The portion of any printed contract or agreement involving a consumer transaction or a lease for space to be occupied for residential purposes where the print is not clear and legible or is less than eight points in depth or five and one-half points in depth for upper case type may not be received in evidence in any trial, hearing or proceeding on behalf of the party who printed or prepared such contract or agreement, or who caused said agreement or contract to be printed or prepared. As used in the immediately preceding sentence, the term consumer transaction' means a transaction wherein the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes" (Emphasis added).

The subject automotive lease agreement is a retail lease agreement as defined in Sec. 331 (2) and (5) of the Personal Property Law. Individually owned automobile leases, such as the document at issue, are generally considered consumer transactions' as identified in Sec. 4544 and Sec. 337. See, Gen. Elec. Capital Auto Lease, Inc., v. D'Agnese, 239 AD2d 462 (N.Y.A.D. 2 Dept. 1997). The underlying purpose of the Sec. 4544 consumer statute provisions is to render contractual provisions "unenforceable" if printed in too small print. Lonner v. Simon Prop. Group Inc., 57 AD3d 100 (N.Y.A.D. 2 Dept. 2008); Filippazzo v. Garden State Brickface Co., 120 AD2d 663 (N.Y.A.D. 2 Dept. 1986) citing to McKinney's Consol. Laws of New York, book 7B, C 4544 1986 Supp. Pamphlet p. 422. See, V.W. Credit Inc. v. Alexandrescu, 13 Misc 3d 1207 (A) (NY City Civ. Ct. 2006), citing to Governor's Program Bill memo No.190 (R) 1994 NY Leg. An., as to the consumer protection purpose of the Sec. 337 landmark legislation for motor vehicle leases.

Whether a contract's print size violates Sec. 4544 is inherently a triable issue of fact that precludes the grant of summary judgment. See, Schiffman v. Hann Auto Trust, 56 AD3d 650 (N.Y.A.D. 2 Dept. 2008); Gulf Ins. Co. v. Kanen, 13 AD3d 579 (N.Y.A.D. 2 Dept. 2004) citing to Hamilton v. Khalife, 289 AD2d 444 (N.Y.A.D. 2 Dept. 2001); Bauman v. Eagle Chase Assoc., 226 AD2d 488 (N.Y.A.D. 2 Dept. 1996). Logic dictates similar treatment for resolution of a Sec. 337 (2) issue.

The record presented is devoid of evidence establishing the actual type set size of theoriginal contract, other than the plaintiff's affixation to its motion papers of Exhibit C (copy of the subject auto lease), which appears to the naked eye to be violative of Sec's. 4544 and 337. This issue is not addressed in any reply papers by plaintiff. Accordingly, given this triable unresolved issue of fact, the Court must deny the plaintiff's summary judgment application and [*4]allow for the resolution of this issue, together with the defendant's NY Personal Property law "lease surrender damage mitigation" defenses at trial.

The Court notes that the Sec's. 4544 and 337 protections were not asserted in the defendant's answer as an affirmative defense. However, this is not an impediment to the defendant raising the issue in opposition to the plaintiff's summary judgment application. Unpled affirmative defenses are capable of resisting a summary judgment motion and even of defeating same. Rizzi v. Sussman, 9 AD2d 961 (N.Y.A.D. 2 Dept. 1959), Village of Port Chester v. Hartford Accident and Indemnity Company, 90 AD2d 831 (N.Y.A.D. 2 Dept. 1982), Siegel's Practice Commentary to CPLR 3212, C 3212:10.

This Court has previously opined that a Sec. 337 affirmative defense need not be asserted in an answer. The burden of proving a claim for "lost lease profits", so as to be in compliance with the "restriction on early surrender lease liability" provisions of Sec. 341 and Sec. 351 , is inherently upon the lessor. See, Ford Motor Credit Co. v. Esposito, 8 Misc 3d 230 (Dist. Ct. Suffolk Co. 2005). Additionally, the Second Department Appellate Division in its Filippazzo decision, has acknowledged that Sec. 4544 "speaks in terms of admissibility in evidence of a contract". Cite infra. Certainly an evidentiary objection that may be raised at trial is available to be asserted in opposition to a summary judgment motion, regardless of whether it is asserted in an answer.

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J.D.C.

Dated:_________________

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