This Court rarely sees such a simple case so heavily litigated. In this 2019 consumer credit action, plaintiff asserts a single claim to recover $11,074.86 based on defendant's alleged breach of a credit card agreement.

Presently before the Court are defendant's motions (1) for summary judgment (seq. nos. [*2]10 and 12)^[FN1] ; (2) for leave to amend the answer to add a counterclaim for abuse of process, to stay the trial which is calendared for February 28, 2023, and for a pre-trial conference (seq. no. 13); (3) in limine to preclude admission at trial of the credit card agreements and statements, and plaintiff's affidavit of Sherri Griffin previously submitted in support of summary judgment (seq. no. 14); and (4) to reargue the Court's January 19, 2023, decision and order (seq. no. 15).

The foregoing motions are consolidated for the purposes of disposition.

By decision and order of this Court dated January 2, 2020 (Semaj, J.), defendant's order to show cause to vacate the default judgment was granted to the extent the default was vacated, defendant's proposed answer — which did not include a defense based on improper service — was deemed filed and served, and the case was restored to the calendar for a conference.

By decision and order dated April 14, 2021 (Raso, J.), plaintiff's motion for summary judgment was denied, because the affidavit of Sherri Griffin was missing a certificate of conformity.

By separate order also dated April 14, 2021 (Raso, J.), the Court denied defendant's motion to dismiss the complaint based on lack of personal jurisdiction. The Court discussed defendant's failure to raise improper service in her then-proposed answer before Judge Semaj, and noted that Judge Semaj did not order a traverse hearing and defendant did not move to reargue Judge Semaj's order.

By decision and order dated December 16, 2021 (Raso, J.), the Court denied defendant's motion to reargue the April 14th order denying her motion to dismiss. In addition, the Court denied that part of defendant's motion to amend the answer to assert a defense of lack of personal jurisdiction, noting that "the application was made twice already, and no traversable issue was found in J. Semaj's January 2, 2020 order." The Court also denied the motion to amend the answer insofar as defendant sought to assert defenses of lack of standing and statute of frauds. However, the Court permitted the answer to be amended to include defenses based on (a) plaintiff is not a party to the alleged contract and did not provide a contract between the parties; plaintiff failed to indicate the state's law governing the interest rate; and plaintiff failed to indicate if there was any protest of any charge (Fifth Aff. Defense); (b) failure to provide proof of mailing (Sixth Aff. Defense); and (c) unclean hands (Seventh Aff. Defense). Finally, the Court granted plaintiff's motion to reargue the April 14th order denying its motion for summary judgment based on the missing certificate of conformity and, upon reargument, denied summary judgment based on the missing certificate of conformity and a lack of personal knowledge set forth in the affidavit of Sherri Griffin. Notably, the Court directed the parties to file a notice of trial.

Plaintiff served a notice of trial on defendant's counsel on December 23, 2021, and filed same with the Court on January 7, 2022 (Ex A, Opp to Summary Judgment). The notice of trial expressly provides that all necessary discovery had been completed, there were no outstanding requests for discovery, there had been a reasonable opportunity to complete all discovery, and [*3]the case was ready for trial (id.).

By decision and order dated April 1, 2022 (Zellan, J.), the Court denied defendant's motion to strike the notice of trial and stay this action pending appeal, without prejudice to defendant seeking the same relief from the Appellate Term. Notably, defendant's counsel informed the Court during a conference on January 19, 2023, that he never sought a stay from the Appellate Term.

In July 2022, the clerk of this Court erroneously rejected plaintiff's notice of trial six months after it was filed, indicating that the case had been marked off the calendar and could only be placed on the trial calendar by a judge. This error precipitated a motion by plaintiff to have the case restored to the trial calendar (seq. no. 11), which was granted by decision and order dated January 19, 2023 (Crawford, J.), and which order set the matter down for a final trial on February 28, 2023 at 11:15 a.m.

As discussed in the January 19, 2023 order, defendant appealed to the Appellate Term, First Dept., from that part of Judge Raso's December 16, 2021, order denying her motion to reargue dismissal on personal jurisdiction grounds. The Appellate Term denied the appeal as taken from a non-appealable paper and noted that, even if it were to consider the merits of defendant's jurisdictional argument, she had failed to raise an issue of fact as to proper service (Bank of America, N.A. v Turner, 77 Misc 3d 136[A], *1 [App Term, 1st Dept, 2022]).

On January 9, 2023, shortly after the Appellate Term issued its ruling and twelve (12) months after plaintiff filed its notice of trial, defendant moved for summary judgment, now pending before the Court.

The January 19, 2023 order (Crawford, J.) is amended only to the extent that the notice of trial filed with the Court on January 7, 2022, is deemed properly filed nunc pro tunc to its filing date.

Defendant moves pursuant to CPLR § 2221 for leave to reargue plaintiff's motion to place this action on the trial calendar, as granted in the January 19, 2023 order. She seeks to adjourn the trial to April 2023 — or to June 2023, if defendant's motion to amend the answer to add a counterclaim is granted — to permit time to conclude pre-trial matters. According to defendant, the Court's January 19th order denies her the right to a fair trial and places an undue burden on her attorney by providing less than one month to prepare for trial. Specifically, defendant seeks additional time to assert a counterclaim (see discussion of mot. seq. no. 13, infra); depose plaintiff's affiant, Sherri Griffin, and conduct other unspecified discovery; and for determination of her motion in limine (see discussion of mot. seq. no. 14, infra). Defendant claims, inaccurately, that this action was stayed and that that is the reason plaintiff's notice of trial was rejected by the clerk of this Court (Memo at 2-3). Defendant further asserts that there was no considerable delay in this case because both parties complied with the protocols of this Court and the Appellate Term, and motion practice resumed once the Appellate Term ruled (Memo at 3).

A motion for leave to reargue pursuant to CPLR § 2221(d) "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." "Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues [*4]previously decided" (Setters v AI Properties and Developments (USA) Corp., 139 AD3d 492 [1st Dept 2016], quoting William P. Pahl Equipment Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992], lv dismissed 80 NY2d 1005 [1992]; Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]). "Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application" (Foley at 567-68). Defendant's motion for leave to reargue is denied, because she fails to identify any matter of law or fact overlooked or misapprehended by the Court on the prior motion. In support of reargument, defendant relies on her pending motions in limine and to amend the answer, which she asserted after the January 19th order which she seeks to reargue. As such, defendant has made no showing that unusual or unanticipated circumstances have developed after the notice of trial was filed which require additional pretrial proceedings so as to avoid substantial prejudice (Jenkins v Riverbay Corp., 187 AD3d 543 [1st Dept 2020]). Rather, any outstanding discovery is due to defendant's own inaction (id.).

The Court underscores that defendant misrepresents the procedural history of this case. She claims that while she was litigating the issue of personal jurisdiction, "[a]ll other issues were placed on hold by the parties and more importantly by this Court" (Memo in Supp. at 1). In fact, this Court denied defendant's motion to stay this action pending appeal (Apr. 1, 2022 order, Zellan, J.) and, as defendant's attorney conceded during a January 19, 2023, conference with the Court, defendant never sought a stay from the Appellate Term, and defendant does not provide an order of the Appellate Term reflecting that it granted a stay. Defendant provides absolutely no support for her contention that this action was stayed pending appeal, which it was not. This fact further undercuts defendant's assertion that she has insufficient time to prepare for trial.

Accordingly, defendant's motion for leave to reargue the January 19, 2023 order, which granted plaintiff's motion to place this action on the trial calendar, is denied.

Defendant moves to amend the answer to assert a counterclaim for abuse of process against plaintiff and plaintiff's process server, Progressive Process Service Inc. d/b/a Progressive Legal Support. Defendant again seeks to stay the trial, and for a pre-trial conference. Defendant's motion is denied for several reasons discussed below.

"Leave to amend the pleadings should be freely given absent prejudice to the opposing party and where the proposed claims are not palpably insufficient or devoid of merit" (Leyton v Siegel, 212 AD3d 521 [1st Dept 2023][internal citations omitted]; CPLR § 3025). This is defendant's third motion to amend the answer. The second such motion (seq. no. 8) was decided on the merits: as relevant here, the Court denied that part of the motion seeking to assert a defense of lack of personal jurisdiction, because the Court had already determined there was no traversable issue in this case (Dec. 16, 2021 order, Raso, J.).^[FN2] Defendant's proposed counterclaim is simply another attempt to challenge personal jurisdiction, which she has repeatedly, unsuccessfully litigated, and is law of the case (Chanice v Federal Exp. Corp., 118 AD3d 634 [1st Dept 2014]; Ruiz v Anderson, 96 AD3d 691, 692 [1st Dept 2012][the doctrine of law of the case "generally operates to preclude successive motions by the same party upon the same proof"]). This Court has three times determined that defendant failed to raise an issue as to proper service (Jan. 2, 2020 order [Semaj, J.]; Apr. 14, 2021 and Dec. 16, 2021 orders [Raso, [*5]J.]), and the Appellate Term denied defendant's appeal on the same ground. Thus, defendant's proposed counterclaim is palpably insufficient and devoid of merit in that it is premised on issues already decided against her (Heller v Louis Provenzano, Inc., 303 AD2d 20, 25 [1st Dept 2003][denying leave to amend]).

Moreover, defendant's proposed counterclaim for abuse of process is time-barred. While a one-year statute of limitation applies to claims for abuse of process (Beninati v Nicotra, 239 AD2d 242 [1st Dept 1997]; see also Spinale v 10 West 66th Street Corp., 291 AD2d 234, 235 [1st Dept 2002]; Benyo v Sikorjak, 50 AD3d 1074, 1077 [2d Dept 2008]), defendant waited more than three-and-a-half years since service of process to seek leave to assert her counterclaim, and does not establish a reasonable excuse for her delay (Heller v Louis Provenzano, Inc., 303 AD2d at 24).

For these reasons, defendant's motion to amend the answer is denied.

Plaintiff moves for summary judgment to dismiss the complaint based on her affirmative defense of unclean hands. She argues that plaintiff has acted immorally, unethically, and illegally in pursuing the breach of contract claim against her. Specifically, defendant contends that plaintiff did not properly serve her with process and illegally, unethically, and perjuriously issued a defective affidavit of service; and wrongfully failed to respond to her written requests for debt verification pursuant to the Federal Fair Debt Collection Practices Act ("FDCPA"), 15 USC § 1692g, and New York City Administrative Code § 20-493.2. Without irony, defendant cites as her injury this protracted litigation.

In opposition, plaintiff argues that defendant's summary judgment motion is untimely. and defendant does not set forth good cause for late filing. On the merits, plaintiff contends that neither of the statutory provisions relied on by defendant apply to original creditors, like plaintiff.

The proponent of a motion for summary judgment bears the initial burden of proffering admissible evidence sufficient to demonstrate the absence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this showing has been made, the burden shifts to the party opposing summary judgment to provide evidentiary proof in admissible form of the existence of triable issues of material fact (Zuckerman at 559). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient to defeat a well-supported summary judgment motion" (Grullon v City of New York, 297 AD2d 261, 263-264 [1st Dept 2002][internal citation omitted]).

Defendant's motion for summary judgment is denied, in the first instance, because it is untimely. CPLR § 3212(a) requires that motions for summary judgment be made no later than 120 days after the filing of a note of issue — or in Civil Court, after the filing of a notice of trial — except with leave of court on good cause shown (CPLR § 3212[a]; CPLR § 2004). "Good cause" as employed in CPLR 3212(a) requires a "satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill v City of New York, 2 NY3d 648, 652 [2004]). "No excuse at all, or a perfunctory excuse, cannot be 'good cause'" (id.). Here, plaintiff filed a notice of trial with the Court on January 7, 2022, giving defendant until approximately May 7, 2022, to timely move for summary judgment. Defendant, however, waited to move for summary judgment until about January 9, 2023, more than one year after the notice of trial was filed. Defendant's argument that the Court's erroneous rejection of the notice of trial in July 2022 somehow extended its time to move for summary [*6]judgment is a red herring, since defendant's statutory time to move for summary judgment expired before the rejection. In any event, this Court has deemed the notice of trial properly filed nunc pro tunc to the date of its filing. Moreover, because this case was not stayed pending appeal, defendant did not have the liberty to wait, as she did, until after the Appellate Term's ruling to move this Court for summary judgment.

Even if defendant had timely moved for summary judgment, the motion would fail on the merits. That part of the motion challenging service of process is denied for the reasons already discussed, based on the prior rulings of this Court and the Appellate Term.

That part of the motion premised on violations of the FDCPA (15 USC § 1692g) and New York City Admin. Code § 20-493.2 also fails, because those provisions do not apply to original creditors, like plaintiff.^[FN3] The FDCPA defines "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another" (15 USC § 1692a[6]). A creditor collecting debts in its own name is not a "debt collector" under the FDCPA (15 USC § 1692a[6][A]; see Pirelli v OCWEN Loan Servicing, LLC, 129 AD3d 689, 693 [2d Dept 2015]["The FDCPA does not apply to a creditor, such as US Bank, N.A., that seeks to enforce a debt owed directly to it"]; Citibank (S.D.) N.A. v Sablic, 55 AD3d 651, 653 [2d Dept 2008]["Citibank is not a debt collector within the meaning of the Fair Debt Collection Practices Act"]; Bank of America, N.A. v Diamante, 75 Misc 3d 142[A], *2 [App Term, 2d, 11th & 13th Dept 2022]). Likewise, New York City Admin. Code § 20-493.2 sets forth certain prohibited collection practices applicable to a "debt collection agency," which as defined excludes a creditor collecting its debts in its own name (New York City Admin. Code §§ 20-489[a][1], 493.2; Citibank, N.A. v Yanling Wu, 199 AD3d 48, 51 [2d Dept 2021]).

Accordingly, defendant's motion for summary judgment is denied.

Defendant seeks to exclude at trial the admission of the credit card statements and agreement(s). She relies on the fact that the Court previously denied summary judgment for plaintiff on the ground that the affidavit of Sherri Griffin lacks personal knowledge of the mailing of these account documents. Defendant further argues that the statements must be excluded because they do not state the legal jurisdiction of the interest rate charged; the statements lack justification for the alleged balance; and the Griffin affidavit lacks personal knowledge of the business practices of plaintiff's predecessor entities, and of the merger and plaintiff's successorship.

Defendant's motion in limine is denied. As plaintiff notes, the Court's denial of summary judgment does not equate to preclusion of the account documents at trial. Plaintiff will have the opportunity at trial to lay a foundation for the admission of its evidence, and defendant will have the opportunity to challenge the foundation as appropriate. With respect to the merger of FIA Card Services, N.A. into plaintiff, which goes to plaintiff's standing, that issue is law of the case; the Court previously denied defendant's motion to amend the answer to add an affirmative defense based on lack of standing (12/16/21 order, Raso, J.). The Court has considered [*7]defendant's remaining arguments and finds them to be unavailing.

Based upon all the foregoing, it is hereby

ORDERED that defendant's motions to reargue, to amend the answer, for summary judgment, and in limine are DENIED; and it is

ORDERED that due to the unavailability of plaintiff's witness on February 28th, the trial is adjourned FINAL to March 31, 2023, at 11:15 AM, in room 504 at 851 Grand Concourse, Bronx, New York. There will be no further adjournments under any circumstance.

This constitutes the decision and order of the Court.