Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on December 26, 2024, under motion sequence number two, by Polish & Slavic Federal Credit Union (hereinafter the plaintiff) for an order: (1) pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability on its claims asserted against defendants Rakwal Realty LLC, Magnolia Beauty Spa, Inc., Cobalt Mechanical, Inc. (hereinafter the entity defendants), Piotr Rakwal and Ewa Rakwal (hereinafter the individual defendants) jointly and severally, for the relief sought in the complaint; and (2) pursuant to CPLR §3211(b), striking the affirmative defenses of the defendants, Rakwal Realty LLC, Magnolia Beauty Spa, Inc., Cobalt Mechanical, Inc, Piotr Rakwal, Ewa Rakwal (hereinafter collectively the defendants) alleged in [*2]their joint answer. The motion is opposed^[FN1]

Exhibits A-B

On January 15, 2024, plaintiff commenced the instant action for, breach of contract, an account stated, and unjust enrichment by filing s summons and complaint and annexed exhibits (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO).

On February 8, 2024, the defendants interposed and filed a joint answer to the complaint. As relevant to the instant motion, the answer contained thirteen denominated affirmative defenses.

The complaint alleged one hundred and twelve allegations of fact in support of ten causes of action. The first, second and third cause of action are asserted against Rakwal Realty LLC for breach of contract, an account stated, and unjust enrichment. The fourth, fifth and sixth cause of action are asserted against Magnolia Beauty Spa Inc. for breach of contract, an account stated, and unjust enrichment. The seventh, eighth and ninth cause of action is asserted against Cobalt Mechanical Inc. for breach of contract, an account stated, and unjust enrichment. The tenth cause of action is for breach of guaranty and is asserted against the individual defendants based on their guaranty of several agreements between the entity defendants and the plaintiff.

The defendants answered the verified complaint and submitted opposition to the instant motion, however, they did not appear on the date scheduled for oral argument of the motion. In accordance with 22 NYCRR 202.27, the Court granted the plaintiff's request to strike the opposition papers of the defendant.

However, "[a] summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion (i.e., 'defaulted')" (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 278 n [1st Dept 2006], citing Vermont Teddy Bear Co., v 1-800 Beargram Co., 373 F3d 241 [2d Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the . . . court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law"]; see Cugini v System Lumber Co., Inc., 111 AD2d 114 [1st Dept 1985] ["A movant's failure to sufficiently demonstrate its right to summary judgment requires a [*3]denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers"]).

It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material issues of fact (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

"Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, 'that there is no defense to the cause of action or that the cause of action or defense has no merit'" (People v Grasso, 50 AD3d 535, 544 [1st Dept 2008], quoting CPLR 3212 [b]. "Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 AD3d at 544, citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990].

In the case at bar, the only sworn testimony submitted by the plaintiff in support of the motion was the affirmation of Reena Forst, plaintiff's counsel (hereinafter Forst), and an affirmation of Roman Kokoszka the plaintiff's loss mitigation specialist (hereinafter Kokoszka).

Forst's affirmation demonstrated no personal knowledge of any of the transactional facts alleged in the complaint. "An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance" (Nerayoff v Khorshad, 168 AD3d 866, 867 [2d Dept 2019], quoting Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]). Forst averred that the plaintiff sent notices to admit to the defendants pursuant to CPLR 3123 and that their responses provided certain evidence in support of the plaintiff's motion.

"CPLR 3123 (a) authorizes the service of a notice to admit upon a party and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted" (American Bldrs. & Contrs. Supply Co., Inc. v Vinyl is Final, Inc., 222 AD3d 708, 709 [2d Dept 2023], citing 32nd Ave. LLC v Angelo Holding Corp., 134 AD3d 696, 697 [2d Dept 2015]). "However, the purpose of a notice to admit is only to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of" (American Bldrs. & Contrs Supply Co. Inc, 222 AD3d at 709, citing Priceless Custom Homes, Inc. v O'Neill, 104 AD3d 664, 665 [2d Dept 2013], and citing HSBC Bank USA, N.A. v Halls, 98 AD3d 718, 721 [2d Dept 2012], and citing Taylor v Blair, 116 AD2d 204, 206 [1st Dept 1986]).

There is no dispute that the plaintiff only submitted the first page of each defendant's response to the notice to admit. It was obvious by the question requested in the plaintiff's demand that the one-page submission was incomplete and in fact, raised more questions than it answered. Contrary to the requirements of CPLR 2214 (c), the plaintiff did not submit the complete response to the notice to admit for the Court to consider. Therefore, the incomplete one-page notice to admit of each of the defendants is disregarded.

CPLR 105 (u) provides that a verified pleading may be utilized as an affidavit (CPLR 105 [u]; Sanchez v National R.R. Passenger Corp., 21 NY3d 890, 891 [2013]). A complaint verified by the plaintiff may be used as an affidavit of the plaintiff (see Sanchez, 21 NY3d at 891-892).

Here, the complaint was verified by plaintiff's counsel in accordance with CPLR 3020 (d) (3) and included fifteen annexed documents. It did not reflect the attorney's personal knowledge of any of the facts alleged therein. It, therefore, did not serve to authenticate any of the documents annexed to the complaint.

The other sworn evidentiary submission by the plaintiff is the affirmation of Kokoszka. Kokoszka averred that he was assigned to the defendants' case after they had already defaulted on their respective obligations. He also averred personal knowledge of defendants' default based on his review of the plaintiff's business records. He did not, however, aver personal knowledge of the plaintiff's business practices and procedures.

Kokoszka also did not authenticate any of the fifteen documents annexed to the verified complaint. Rather, he referred to the NYSCEF numbers of the some of the fifteen annexed documents without authenticating any one of the documents that he referred to. These unauthenticated documents were, therefore, inadmissible.

"[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" (Citibank, N.A. v Potente, 210 AD3d 861, 862 [2d Dept 2022], quoting Bank of NY Mellon v Gordon, 171 AD3d 197, 205 [2d Dept 2019]). Accordingly, evidence of the contents of business records is admissible only where the records themselves are admitted (see Bank of NY Mellon, 171 AD3d 197 at 205). Without their admission, a witness's testimony as to the contents of the records is inadmissible hearsay (see id.). Under these circumstances, Kokoszka's testimony regarding the defendants alleged defaults of various agreement based on these documents is inadmissible hearsay. The plaintiff's motion is therefore denied without regard to the sufficiency, or lack thereof, of the opposing papers (see Cugini v System Lbr. Co., 111 AD2d 114, 115 [1st Dept 1985]).

"[W]here affirmative defenses 'merely plead conclusions of law without any supporting facts,' the affirmative defenses should be dismissed pursuant to CPLR 3211 (b)" Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 750 [2d Dept 2010], quoting Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2d Dept 2008]).

The defendants' opposition papers were struck for failure to appear for oral argument of the motion. This branch of the plaintiff's motion is deemed unopposed.

The first affirmative defense is that the complaint fails to state a cause of action. The motion to strike this affirmative defense must be denied. "[N]o motion by the plaintiff lies under CPLR 3211 (b) to strike the defense of failure to state a cause of action, as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim" (Ochoa v Townsend, 209 AD3d 867 [2d Dept 2022], quoting Butler v Catinella, 58 AD3d 145, 150 [2d Dept 2008]). Therefore, except for the first affirmative defense, this branch of the plaintiff's motion is granted.

The motion by plaintiff Polish & Slavic Federal Credit Union for an order pursuant to CPLR 3212 granting summary judgment in its favor on its claims against defendants Rakwal Realty LLC, Magnolia Beauty Spa, Inc., Cobalt Mechanical, Inc., Piotr Rakwal and Ewa Rakwal is denied.

The motion by plaintiff Polish & Slavic Federal Credit Union for an order pursuant to CPLR §3211(b) striking the affirmative defenses of the defendants Rakwal Realty LLC, Magnolia Beauty Spa, Inc., Cobalt Mechanical, Inc., Piotr Rakwal and Ewa Rakwal is denied as [*4]to the first affirmative defense and granted as to all other affirmative defenses.

The foregoing constitutes the decision and order of this Court.