The above-named Plaintiff, by its attorneys, previously moved this Court for summary judgment in this action, based upon an alleged credit card default, which was denied for failure of the Plaintiff to offer proof of the default or amount due. Further, there was no proof of assignment of the claim because the copies of the alleged assignment provided were totally illegible. The Plaintiff then moved for an order striking the Defendant's Answer predicated upon her failure to answer interrogatories (CPLR 3126(3)). The interrogatories were not provided with the moving papers, however, and repeated requests from the Court for the same to be provided went unheeded. Accordingly, that motion was denied. The Plaintiff again moved to strike the Defendant's Answer upon the same ground. This Court denied that motion in a Decision and Order dated February 28, 2012, noting the interrogatories were improper.^[FN1] The Plaintiff now moves for re-argument, respectfully submitting this Court applied an incorrect legal standard, by referencing an improper Notice to Admit standard, as opposed to the free disclosure normally envisioned under use of interrogatories.

Since the Court was perhaps not clear enough on the underlying basis for its previous [*2]decision, it grants the motion for re-argument. It also adheres however, to its earlier decision. From the foregoing outline of the history of this case and the Plaintiff's continued attempts to have the Defendant prove the Plaintiff's case, it becomes increasingly evident that the Plaintiff lacks proof to procure a judgment.

Despite stylizing the discovery device used as Interrogatories, practically speaking, the questions posed are nothing more than a request for admissions.^[FN2] To be blunt, if it looks like a duck, quacks like a duck, and walks like a duck, it is a duck. For the Court to exercise its discretion pursuant to CPLR 3126 to strike the Defendant's pleadings for failure to comply with the Demand for Interrogatories would in this case be a glaring abuse of that power.

To date the Plaintiff has failed to show it has standing to sue, because it has failed to show any valid assignment from the original creditor and or its successors. Cach, LLC v Sliss, 28 Misc 3d 1230(A) (Auburn City Court, 2010). It also has made no offering of any billing statements, or the credit card agreement, in support of a prima facie case for the alleged credit card default. Responsible practice would suggest Plaintiff's counsel should have such documentation before commencing suit. LVNV Funding, LLC v Guest, 35 Misc 3d 1232(A)(Mt. Vernon City Court, 2012). For counsel to suggest it is the Defendant whose action is "contumacious and in bad faith" (para. 9, Bronstein Affirmation) is to say the least, both cynical and ironic.

This constitutes the Decision and Order of the Court.

Dated:February 5, 2013/s/

HON. DENNIS F. BENDER

Acting Supreme Court Justice