This is a breach of contract action for failure to pay monies due under a promissory note.

On March 28, 2023, Defendant, as Borrower, entered into a Note and Security Agreement (hereinafter the "Note") with Plaintiff, as Lender, in the sum of $2,000.00, plus interest, payable in 24 monthly payments, commencing May 1, 2023.^[FN1] Defendant's last payment in the sum of $110.89 was received on May 24, 2023.^[FN2] The unpaid balance on the account is in the sum of the sum of $2,295.83 together with interest on the principal balance at the rate of 24.99% per annum from January 8, 2024.^[FN3]

Plaintiff seeks damages in the sum of $2,295.83 together with interest on the principal [*2]balance at the rate of 24.99% per annum from January 8, 2024, for breach of the Note.

In the Answer, Defendant claimed hardship and sought to enter a payment plan.^[FN4] Plaintiff offered to enter a plan, but Defendant failed to respond.^[FN5] By letter dated January 27, 2025, Defendant, once again, acknowledged the debt but sought payment terms.^[FN6]

Plaintiff moved for summary judgment for the relief requested in the Complaint pursuant to CPLR Rule 3212. In Zuckerman v. New York, 49 NY2d 557, 562 [1980], where the Court held,

"To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor ( CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b]). Normally if the opponent is to succeed in defeating a summary judgment motion, he, too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form." (Internal quotations and citations omitted)."

Recognizing that summary judgment is a "drastic remedy" the "facts must be viewed in the light most favorable to the non-moving party (seeVega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]) (emphasis added). The Court's function is "not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact" (see S. J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]); see also Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] where the Court held, "issue-finding, rather than issue-determination, is the key to the procedure" (emphasis added).

Plaintiff submitted copies of the Note, Defendant's last payment and balance due, not only stating a cause of action but also establishing a prima facie basis for summary judgment (see Citibank (South Dakota), N.A. v. Keskin, 121 AD3d 635, 636 [2d Dept. 2014], where the Court held, inter alia:

"The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on its cause of action to recover damages for breach of contract by tendering sufficient evidence that there was an agreement, which the defendant accepted by his use of a certain credit card issued by the plaintiff and payments made thereon, and which was [*3]breached by the defendant when he failed to make the required payments".

For the reasons more fully stated above, Plaintiff's motion for summary judgment is Granted and Plaintiff is awarded Judgment against Defendant the sum of $2,295.83 together with interest on the principal balance at the rate of 24.99% per annum from January 8, 2024, to the date hereof, with 9% interest thereafter, costs, and disbursements.

This memorandum constitutes both the decision and order of the Court.^[FN7]