City Court of Buffalo, August 14, 2023

Relin, Goldstein & Crane LLP (Shelly L. Baldwin of counsel) for plaintiff.

Zachary Pinkney, defendant pro se.

In this action brought by plaintiff Credit Acceptance Corporation (hereinafter plaintiff) against Zachary Pinkney (hereinafter defendant) for damages in the amount of $11,131.50 with interest in the amount of 9% from March 2, 2018, together with costs and disbursements of this action, plaintiff now moves pursuant to CPLR 3212 for summary judgment (1) striking the defendant Zachary Pinkney's answer, and (2) granting summary judgment in favor of the plaintiff for the relief demanded in the complaint on the basis that no triable issue of fact exists and, further, that no valid defense exists in this case.

This action was timely commenced with a filing of a summons and complaint with this court on October 18, 2021. Defendant interposed his answer on November 18, 2021. Plaintiff's instant motion was made before this court on June 7, 2023.

Under New York law, any party may move for summary judgment pursuant to CPLR 3212. Summary judgment, however, is considered a drastic remedy as it deprives the nonmoving party its day in court. It should only be employed when there is "no doubt as to the absence of triable issues" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966]). According to CPLR 3212, New York courts may grant summary judgment only where the movant shows by affidavit or other evidence that there are "no material issue[s] of fact" for a claim at issue and the movant is entitled to a judgment as a matter of law (Brill [*2]v City of New York, 2 NY3d 648, 651 [2004]; CPLR 3212 [b]). Only when sole questions of law exist in an action may the court decide the case upon the parties' submissions without a trial.

On any motion for summary judgment, the moving party must make a prima facie showing of its entitlement to judgment{**80 Misc 3d at 1095} as a matter of law by the submission of evidentiary proof in admissible form sufficient to establish the absence of any material, triable issue(s) of fact (CPLR 3212 [b]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Where the moving party establishes a prima facie case showing entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). For the nonmoving party's defenses to survive, there must exist a bona fide defense (see Torto Note Member, LLC v Babad, 192 AD3d 843 [2d Dept 2021]).

In 2007, the United States Supreme Court ushered in a sea change to pleading standards, and consequently pretrial motion practice in the seminal Bell Atlantic Corp. v Twombly decision which heightened pleading standards in civil cases (Bell Atlantic Corp. v Twombly, 550 US 544 [2007]). Prior to Twombly, the federal pleading standards were much more permissive than today; under the pre-Twombly standard, claims or affirmative defenses would succumb to a pretrial attack only if it appeared beyond a doubt that the litigant would be able to prove "no set of facts" in support of the articulated claim (Conley v Gibson, 355 US 41, 45 [1957]). Twombly eviscerated Conley's permissive "no set of facts" standard, thereby replacing Conley with a plausibility standard requiring a litigant to plead "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of the underlying claim (Twombly at 556). In the context of a 42 USC § 1983 hearing, the Supreme Court in 2009 then extended Twombly's heightened pleading standard to all federal cases (Ashcroft v Iqbal, 556 US 662 [2009]). Under Iqbal, a pleading is facially plausible when the plaintiff pleads sufficient factual content that allows the court to draw reasonable inferences that the defendant is liable for the misconduct alleged (id. at 678).

Federal courts in the immediate aftermath of Twombly and Iqbal held affirmative defenses to the same plausibility standard{**80 Misc 3d at 1096} as plaintiffs' claims, generally based on the reasoning that the same standard should apply equally to plaintiffs and defendants who each bear a burden of proof on claims and affirmative defenses, respectively, regardless of any textual discrepancies in rule 8 of the Federal Rules of Civil Procedure. It is important to note, however, that within various federal circuits, there exist splits among the district courts regarding whether to apply Twombly to affirmative defenses. Such a marked intra-circuit split famously exists within the Ninth Circuit; the Northern District of California uniformly applies Twombly to affirmative defenses (Hernandez v Dutch Goose, Inc., 2013 WL 5781476, *4, 2013 US Dist LEXIS 153707, *7 [ND Cal, Oct. 25, 2013, No. C 13-03537 LB] [remarking on the "widespread agreement" in the Northern District of California that Twombly applies to affirmative defenses]), whereas district courts in the Eastern District of California (Dodson v Gold County Foods, Inc., 2013 WL 5970410, *2, 2013 US Dist LEXIS 157949, *5-9 [ED Cal, Nov. 4, 2013, No. 2:13-cv-0336-TLN-DAD]) will not apply Twombly to an affirmative defense.

While neither the New York Court of Appeals nor the Appellate Division have expressly adopted the heightened pleading standard set forth in Twombly and Iqbal as applicable to cases arising in New York courts, a shrouded pattern is emerging in some New York trial courts that appears to do just that. The Bronx County Supreme Court equates Twombly's heightened pleading standards as being synonymous with requirements set forth in the CPLR and applies the heightened standard to New York claims (Cabrera v City of New York, 2014 NY Slip Op 30533[U], *5 [Sup Ct, Bronx County 2014] [holding that "(w)hether this Court is bound to apply Federal law on the instant motion—as argued by defendants—or State law—as argued by plaintiff—is not dispositive, because, here, the standards imposed with respect to a motion pursuant to CPLR § 3211 (a) (7) and FRCP § 12 (b) (6) are nearly identical"]). In exercising state jurisdiction over a 42 USC § 1983 claim, the Bronx County Supreme Court expressly adopted the Twombly and Iqbal pleading standards in dismissing a plaintiff's claim (Abraham v City of New York, 2018 NY Slip Op 32115[U] [Sup Ct, Bronx County 2018]). With no negative treatment by the Appellate Division or Court of Appeals to the contrary, it appears logical that this trend should continue for the reasons set forth below.{**80 Misc 3d at 1097}

Logical analysis of both the relevant pleading standards articulated under the New York CPLR and federal Twombly and Iqbal standards reveals a functional equivalence: the same pleading that either survives or fails under the CPLR's pleading standards likewise survives or fails under the Twombly and Iqbal heightened plausibility pleading requirement. Due to this logical relationship, no pleading can survive under Twombly and Iqbal yet fail under the CPLR's standards or vice versa. In the parlance of first-order logic, one is forced to conclude that these standards are truth-functional equivalents^[FN*] because they produce identical outputs given identical inputs.

For these reasons, this court expressly adopts the reasoning behind the heightened pleading standard set forth in Twombly and Iqbal as having meaningful force in New York litigation: The value of Twombly's plausibility standard sheds light on what constitutes a "bona fide" defense; plaintiff herein moves to strike the defendant's answer in its entirety; thus, this court has an acute need to determine whether defendant maintains a bona fide defense that will survive plaintiff's attack. Notwithstanding the above-described circuit split with respect to the application of Twombly to affirmative defenses, this court has previously held that plaintiffs and defendants should be held to the same pleading and motion standards on Fourteenth Amendment fundamental fairness and due process of law grounds (Progressive Max Ins. Co. v City of Buffalo, 79 Misc 3d 1209[A], 2023 NY Slip Op 50559[U] [Buffalo City Ct 2023]).

Read vis-à-vis the relevant provisions of the CPLR, defendant's affirmative defenses cannot be deemed bona fide defenses where, in response to a motion for summary judgment where the moving party has established its prima facie case, the defendant failed to plead [*4]sufficient factual content that allows this court to infer that the discovery process could produce evidence in admissible form that establishes such defense to the action. To hold otherwise would be to eviscerate the relevant New York law governing summary judgment.{**80 Misc 3d at 1098}

In support of the instant motion for summary judgment, plaintiff introduces the electronic original retail installment contract made between the plaintiff and defendant. The contract appears to bear the defendant's electronic signature and the defendant's initials at various places throughout the agreement. Additionally, the plaintiff offers an affidavit of Sandi Ostler, a legal assistant employed at Credit Acceptance Corporation with personal knowledge of the amounts owing to the plaintiff under the contract. Ms. Ostler's affidavit testifies to the amounts owed under the agreement and to the fact that the defendant failed to make payments under the agreement, leaving an outstanding balance of $11,131.50. Thus, the plaintiff makes its prima facie showing of entitlement to relief on both causes of action for breach of contract and judgment in its favor.

The plaintiff's prima facie case being established, the burden now shifts to the defendant to produce evidence in admissible form that a triable issue of material fact or a bona fide defense to the claim exists. The defendant has failed to meet this burden. Virtually all of the defendant's herein defenses are conclusory in nature and fail to assert the existence of any material fact that would overcome the plaintiff's claim for breach of contract. Defendant's formulaic defenses lack any meritorious content needed to propel this case past the threshold of trial. Not a single defense raised within the answer plausibly attempts to refute the central point of the plaintiff's case, namely, that he breached a valid retail installment contract. The above-described plausibility standard, applied in this case, illuminates the inability to draw an inference that a scintilla of evidence would be drawn from the discovery process that would establish any of the defendant's enumerated defenses. This court lacks discretion to deny the motion, given the plaintiff having met its burden for summary judgment, defendant having failed to meet its shifted burden, and defendant having failed to assert non-conclusory allegations supporting the existence of a bona fide defense.

For the foregoing reasons, plaintiff's motion is granted in its entirety, defendant's answer is stricken, and summary judgment is granted in favor of the plaintiff in the relief requested in the complaint in an amount of $11,131.50 with interest in{**80 Misc 3d at 1099} the amount of 9% from March 2, 2018, together with costs and disbursements of this action.