The opinion of the court was delivered by: William M. Skretny United States District Judge
1. Plaintiff commenced this action against Defendants on May 24, 2007, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. On November 10, 2008, Defendant National Enterprise Systems, Inc. ("NES") moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket No. 50.) Plaintiff filed her response in opposition on December 15, 2008. (Docket No. 52.) Familiarity with the facts and arguments is presumed. For the following reasons, Defendants' motion is denied in part and denied as moot in part.
2. Summary Judgment is warranted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). A fact is material if it "might affect the outcome of the suit under governing law." Anderson, 477 U.S. at 248.
3. The party seeking summary judgment must first demonstrate the absence of any disputed material facts. The opposing party is then required to "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008). To carry this burden, the opposing party "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, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and it "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . or upon the mere allegations or denials of the adverse party's pleading," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (internal quotation and citations omitted).
4. In assessing whether summary judgment is appropriate, the court's obligation is to view the evidence and the inferences drawn from the evidence "in the light most favorable to the party opposing the motion." Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed.2d 142 (1970). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249."Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
5. Having thoroughly reviewed NES's motion and Plaintiff's opposition thereto, this Court finds that NES is not entitled to summary judgment. First, NES has failed to comply with the Local Rule requiring that a Statement of Undisputed Facts be filed with any motion seeking summary judgment. Local Rule 56.1(a), provides as follows:
Upon any motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
6. NES's failure to file a Statement of Undisputed Facts is not only a procedural error, but a substantive one as well. Without a Statement of Undisputed Facts and a response thereto, this Court cannot determine whether any material issues of fact exist, as required by Rule 56 of the Federal Rules of Civil Procedure. Although NES's memorandum of law contains a brief statement of facts (a single paragraph), it is drawn from the Complaint, not the record evidence. In addition, NES failed to respond to Plaintiff's 80-paragraph Statement of Disputed Facts. Accordingly, NES has not demonstrated the absence of disputed issues of material fact.
7. Next, this Court finds that NES is not entitled to summary judgment on Plaintiff's intentional infliction of emotional distress claim. To succeed on a claim of intentional infliction of emotional distress, a plaintiff must prove the following elements:
(1) Extreme and outrageous conduct;
(2) Intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress;
(3) A causal connection between the conduct and injury; and
(4) Severe emotional distress.
Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (citing Howell v. New York Post Co., Inc., 612 N.E.2d 699, 702, 81 N.Y.2d 115, 121 (1993)); see also Walker v. New York City Transit Auth., No. 99 CIV. 3337(DC), 2001 WL 1098022 (S.D.N.Y. Sept. 19, 2001). Liability can be found only where the conduct alleged is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a ...