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KRAMSKY v. NICHTER

October 11, 2001

LISA KRAMSKY, PLAINTIFF,
V.
MARK L. NICHTER, P.C., DEFENDANT.



The opinion of the court was delivered by: Mcmahon, District Judge.

DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT SUA SPONTE FOR DEFENDANT

Plaintiff Lisa Kramsky brings this complaint against defendant Mark L. Nichter for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et. seq. as a result of an alleged failure to provide a proper "validation notice" in his attempt to collect an unpaid debt. Plaintiff moves for summary judgment.

Nichter, a collection attorney, sent plaintiff a letter dated January 17, 2001, in an attempt to collect a debt of $101.70 on behalf of his creditor client, Mt. Sinai Clinical Labs. The letter stated:

This office has been engaged to proceed against you because of your failure to make payment on the above past due debt. If we do not receive payment we may recommend legal proceedings against you without further notice.
We caution you that we will not permit this debt to be ignored.
It would definitely be in your best interest to satisfy in full your outstanding balance, make your check payable to the above creditor and send it to us. An envelope is enclosed for your remittance.
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of judgment and mail you a copy of such judgment or verification. If you request in writing within 30 days after receiving this notice, our office will provide you with the name and address of the original creditor if different from the current creditor. This is an attempt to collect this debt by a debt collector and any information obtained will be used for that purpose.

DISCUSSION

Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the non-moving party must go beyond the pleadings and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When opposing a motion for summary judgment, it is not sufficient for the non-moving party to present evidence that is conclusory or speculative, with no basis in fact. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

When one party makes a motion for summary judgment, the Court may search the record and may grant summary judgment to any party. See Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)). Here, the facts are undisputed and a pure issue of law is presented. Therefore, this case is ripe for summary judgment in someone's favor. I conclude that the right someone is defendant, not plaintiff.

The FDCPA states that, when a debt collector solicits payment, it must provide the consumer with a detailed validation notice. 15 U.S.C. § 1692g(a). The section provides, in relevant part:

[W]ithin five (5) days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has ...

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