This matter comes before the Court on an application by Defendant seeking summary judgment dismissing the Complaint and awarding relief on Defendant's counterclaims. The basic standard to be applied by a court addressing a summary judgment motion is well-established in case law. The proponent of a summary judgment motion bears the initial burden of making a prima facie showing of entitlement to judgement as a matter of law by submitting sufficient evidence to show that no material issues of fact exist, irrespective of the sufficiency of any opposition papers (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If that showing is made, the burden of proof then shifts to the responding party to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Both movant and respondent must submit evidence in admissible form (Zuckerman v. City of New York, 49 NY2d 557 [1980]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]).

Procedural Matters. Two procedural matters must be addressed at the outset. The first is Plaintiff's filing of a Notice of Discontinuance on September 9, 2025 (NYSCEF Doc. No. 72). A Notice of Discontinuance must be served before a responsive pleading is filed (CPLR 3217[a]). Otherwise, the party seeking to discontinue must obtain a court order (CPLR 3217[b]). Plaintiff filed its Notice of Discontinuance after Defendant had filed his Answer, and indeed, after Defendant had filed his Amended Answer pursuant the Court's Order granting permission to do so (NYSCEF Doc. No. 64). Plaintiff did not seek a court order of discontinuance as required by statute. The Notice of Discontinuance filed by Plaintiff without a court order was thus ineffective.

Second, Defendant has submitted a number of filings labeled as seeking summary judgment or supporting his request for summary judgment. The statute that governs motions for [*2]summary judgment (CPLR 3212) states that the motion must be supported by an affidavit and other forms of proof. As stated by the Court of Appeals in the Zuckerman opinion cited above, all proof submitted must be in a form that would be admissible as evidence at trial. Hence the need for a sworn affidavit, which is a written form of testimony. Unsworn statements cannot be considered on a summary judgment motion (see e.g. Overocker v. Madigan, 113 AD3d 924 [3d Dept 2014]). Given these requirements, some of Defendant's submissions are insufficient on their face, being unsworn and/or unsigned. Also, CPLR 2214 requires the Notice of Motion to specify the supporting papers on which the motion is based, and the Rules of Court (22 NYCRR §202.8[c]) require the moving party to serve all motion papers upon the other parties at the time of service of the Notice of Motion.

While this motion has been pending, Defendant has submitted numerous exhibits, some accompanying affidavits and some submitted with unsigned correspondence. Defendant's filings subsequent to his initial Notice of Motion, and certainly the exhibits submitted with unsigned correspondence, run afoul of the standards set out in CPLR 2214, the Zuckerman opinion and §202.8 of the Rules of Court. Defendant cites CPLR§3212(f) as authority for seeking to augment the record on his summary judgment motion, but the purpose of §3212(f) is to allow a court to permit additional submissions by the party opposing the motion, not the moving party.

It has long been held that a self-represented litigant "acquires no greater right than any other litigant" and is thus subject to the same standards of proof (Duffen v. State, 245 AD2d 653, 653-54 [3d Dept 1997]). However, courts will routinely grant some procedural latitude to a self-represented party (Id.). The CPLR also grants courts discretion to disregard mistakes, defects or omissions if no substantial right of a party is prejudiced (CPLR § 2001). Because the Court granted Defendant's motion to amend his Answer, the Court will consider Defendant's properly sworn affidavits and associated exhibits that were filed in support of his additional counterclaims. However, other documents that were not presented in appropriate form will not be considered. A list of the documents considered and not considered on this motion follows:

-NYSCEF Docs. 39, 41 and 42, which together constitute a Notice of Motion, affidavit and exhibit. The affidavit also references other documents previously submitted with Defendant's prior motions. Defendant's sworn affidavits and associated exhibits submitted in support of his prior motions are considered here to the extent they are relevant to this motion.

-Docs. 60, 61 and 62— sworn affidavit and exhibits relevant to an argument presented in Defendant's initial motion papers.

-Docs. 66 through 70 — sworn affidavit with exhibits in support of summary judgment on counterclaims found in the Amended Answer.

-Docs. 76 and 77 — sworn affidavit with exhibit in support of summary judgment on counterclaims found in the Amended Answer.

-Doc. 40 — unsigned affidavit not in admissible form.

-Doc. 44 — unsworn and unaffirmed correspondence not in admissible form.

-Docs. 45 through 57— exhibits accompanying Doc. 44, not in admissible form.

-Doc. 59 — unnecessary "supplemental" Notice of Motion.

-Doc. 71 — unsigned correspondence.

-Doc. 74 — unsworn and unaffirmed "opposition" to Notice of Discontinuance.

-Doc. 75 — unsigned correspondence.

Dismissal of the Complaint. Bearing in mind all of the discussion above, a reading of Defendant's submissions reveals three core arguments for summary judgment dismissing the Complaint: improper service of process, lack of standing, and failure to respond to discovery demands. The question of service of process was addressed in the Court's August 21, 2025, Decision and Order deciding Defendant's CPLR 3211 motion to dismiss the Complaint. Service upon Defendant pursuant to CPLR 308(2) was actually acknowledged by Defendant in his motion papers. Moreover, that ruling constitutes the "law of the case" and cannot be relitigated here (see Deutsche Bank Natl. Trust Co. v. Zatari, 220 AD3d 1151 [3d Dept 2023]).

Defendant's other two arguments, taken together, are dispositive. On June 3, 2025, Defendant served a Notice to Admit pursuant to CPLR §3123. The first item in the Notice states, "PRA does not possess a bill of sale or chain of assignment for the Citibank Mastercard account ending in 1123, as alleged in the Complaint (NYSCEF. No. 1)." Plaintiff did not respond to the Notice to Admit, so that this statement is deemed admitted as true (CPLR §3123[a]). In order to show its standing to bring this action, Plaintiff would be required to offer evidence in the form of business records to prove that it received an assignment of the Citibank credit card debt (see e.g. Unifund CCR Partners v. Youngman, 89 AD3d 1377 [4th Dept 2011]). Because Plaintiff has admitted that it does not possess proof of its standing to sue, Defendant's motion for summary judgment dismissing the Complaint must be granted.

Defendant's Counterclaims.

The First Counterclaim alleges violation of the Fair Debt Collection Practices Act ("FDCPA") found at 15 USC §1692 et seq. This statute imposes civil liability on debt collectors for committing prohibited collection practices (Gregg v. SN Servicing Corp., 2025 WL 2922391, 2025 NY Slip. Op 05672 [2d Dept 2025]). An individual can recover their actual damages sustained as the result of prohibited conduct (Green v. Forster & Garbus, LLP, 237 AD3d 1059 [3d Dept 2025]). To establish a violation of the FDCPA, a plaintiff must show (1) the plaintiff is a "consumer" as defined in the statute, (2) the defendant is a "debt collector" as defined in the statute, and (3) the defendant engaged in some act or omission which violated the statute (Okyere v. Palisades Collection, LLC, 961 F Supp 2d 508 [SD NY 2013]).

Defendant falls within the statutory definition of "consumer" (15 USC §1692a [3]). The Complaint alleges that Plaintiff acquired the credit card account at issue after Defendant's default in payment, making Plaintiff is a debt collector under the FDCPA (see Zirogiannis v. Dreambuilder Investments, LLC, 782 F Supp 2d 14 [ED NY 2011]). Defendant asserts three violations of the FDCPA by Plaintiff.

Defendant first asserts that Plaintiff falsely represented to the Consumer Financial Protection Bureau that Defendant was a "customer" of Plaintiff with an active account, even though Plaintiff was actually a debt collector under the FDCPA. On this motion, however, Defendant does not support this allegation with either a sworn statement or an exhibit. The copy of the CFPB complaint that includes Plaintiff's response (NYSCEF Doc. 41) does not state or otherwise represent that Defendant is a customer with an active account and Defendant points to no other documents containing such a statement.

Defendant also asserts that Plaintiff misrepresented the debt's validity by bringing this lawsuit and later sending Defendant a document (appended to Defendant's August 27 Affidavit as Exhibit L-1) indicating that, after investigation, the account was found to have a zero balance, and ultimately filing the Notice of Discontinuance discussed above. False or misleading [*3]representations as to the character, amount or legal status of a debt can violate the FDCPA (15 USC §1692e[2][A]). However, the filing of a lawsuit to collect a debt, even if the plaintiff does not possess documentary proof of the debt's validity, does not by itself violate the FDCPA; something more, such as an affidavit or certificate asserting false information, is necessary (see Sykes v. Mel Harris and Assocs., LLC, 757 F Supp 2d 413, 423-24 [SD NY 2010]). Defendant does not point to any such additional documentation filed in this lawsuit. Plaintiff's initiation of a lawsuit that later proved meritless is not sufficient to support Defendant's FDCPA claim.

Finally, Defendant asserts the improper service of process upon him. Absent the commission of activities aimed at collecting a debt that go well beyond serving a summons and complaint, process servers are exempt from the definition of "debt collector" under FDCPA (see Romea v. Heidberger & Assocs., 163 F3d 111 [2d Cir 1998]). In this case, notwithstanding Defendant's allegations of a nonexistent military service inquiry, the process server did no more than serve the Summons and Complaint upon Defendant. There is nothing in the process server's conduct to support Defendant's FDCPA claim.

Because there is no evidence of prohibited conduct by Plaintiff under the FDCPA, Defendant's first counterclaim finds no support in the record and summary judgment dismissing it is appropriate under CPLR 3212(b).

The second counterclaim alleges violation of General Business Law §349. This statute has a broader reach than the FDCPA, in that it forbids deceptive acts or practices in the conduct of any business. A plaintiff bringing a §349 claim must prove (1) the challenged act or practice was consumer oriented, (2) it was misleading in a material way, and (3) the plaintiff suffered injury as the result of the deceptive act (Gregg v. SN Servicing Corp., supra).

Defendant's claim finds support from his allegation that Plaintiff violated the September 8, 2015, Consent Order between Plaintiff and the U.S. Consumer Financial Protection Bureau. While Defendant has not supplied a copy of the 60-page consent order, he cites to it in his affidavit of August 27, 2025, with sufficient specificity that it was readily available to the Court in public records, thus allowing the Court to take judicial notice of its terms (see e.g. Matter of Julian P., 129 AD3d 1222 [3d Dept 2015]). By initiating a lawsuit without having possession of a bill of sale or chain of assignments, Plaintiff violated Art. VIII of the Consent Order, which specifically enjoins that very practice. While the Consent Order injunction is limited to those persons and entities who receive actual notice of its terms, the fact that this lawsuit was brought directly by attorney employees of Plaintiff and not an independent law firm precludes an argument that notice was lacking.

The violation of the Consent Order establishes the first two elements of Defendant's required showing under §349. As to the third element, Defendant claims actual damages for "hours lost" and provides two timesheets to document the time he has spent defending himself in this action. He seeks compensation at a rate of $65.00 per hour, enhanced to treble damages. Defendant also seeks punitive damages for "willful deception," citing §349(h).

While Defendant says the $65.00 hourly rate is verifiable by paystub, he has not submitted copies of paystubs to facilitate such a calculation. Moreover, the Court of Appeals has recently held that claims for treble damages under §349 are limited to a maximum of $1,000.00, and has also held that punitive damages are unavailable (Hobish v. AXA Equitable Life Ins. Co., 43 NY3d 442 [2025]).

Defendant's third counterclaim asserts abuse of process. The elements of a claim of abuse of process are (1) regularly issued process, (2) an intent to do harm without excuse or [*4]justification, and (3) use of the process in a perverted manner to obtain a collateral objective (Place v. Ciccotelli, 121 AD3d 1378, 1380 [3d Dept 2014]). The main problem for Defendant here is the third element. The Summons in this case was used as a summons is customarily used — to initiate a lawsuit against Defendant. Defendant points to no other uses of the Summons and Complaint by Plaintiff or the process server. Like Defendant's first counterclaim, this counterclaim finds no support in the record and summary judgment dismissing it is appropriate under CPLR 3212(b).

Defendants' fourth counterclaim seeks sanctions for frivolous conduct pursuant to 22 NYCRR §130-1.1. Under this rule, conduct is frivolous if:

(1) It is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) It is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) It asserts material factual statements that are false.

The record here establishes frivolous conduct on the part of Plaintiff. Plaintiff served a complaint containing statements as to a debt owed to Plaintiff by Defendant for which Plaintiff has admitted it lacks proof. Plaintiff has not responded to any of Defendant's discovery demands or motions, and in the face of Defendant's summary judgment motion, Plaintiff has improperly filed a Notice of Discontinuance. On this record, Plaintiff has taken a position that is completely without merit and the Complaint makes factual assertions that are false. Defendant is thus entitled to his actual expenses and reasonable attorney's fees incurred in this case (22 NYCRR §130-1.1[a]). Since Defendant is self-represented, he has no claim for attorney's fees, but he will be awarded a Bill of Costs.

Defendant's remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of the foregoing, it is hereby

ORDERED, that Defendant's motion seeking summary judgment dismissing the Complaint and awarding judgment on his counterclaims is GRANTED IN PART as follows:

1. The Complaint is hereby dismissed;

2. Defendant shall have judgment in the amount of One Thousand and no/100 Dollars ($1,000.00) on his second counterclaim for violation of General Business Law §349; and

3. Defendant is awarded one Bill of Costs pursuant to 22 NYCRR §130-1.1;

ORDERED, that Defendant shall submit to the Court a proposed Judgment, together with a proposed Bill of Costs, in conformity with this Decision and Order; and it is further

ORDERED, that Defendant's first counterclaim is dismissed; and it is further

ORDERED, that Defendant's third counterclaim is dismissed; and it is further

ORDERED, that all requests for relief made by Defendant that are not otherwise granted or dismissed above are hereby denied.