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Credit Acceptance Corporation v. Mark Wilkerson

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


March 6, 2012

CREDIT ACCEPTANCE CORPORATION,
RESPONDENT, --
v.
MARK WILKERSON,
APPELLANT.

Appeal from an order of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), entered March 15, 2011.

Credit Acceptance Corp. v Wilkerson

Decided on March 6, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The order granted plaintiff's motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff's motion for summary judgment is denied.

Plaintiff, the alleged assignee of a retail installment contract, commenced this action to recover the balance due after defendant had defaulted in making payment. In support of a motion for summary judgment, plaintiff submitted an affidavit by a "Designated Agent" employed by plaintiff, along with exhibits, including the retail installment contract and documents showing a balance due. In opposition to the motion, the self-represented defendant argued, in effect, that the exhibits were inadmissible since plaintiff did not lay a proper foundation therefor. The City Court granted plaintiff's motion for summary judgment.

Upon a review of the record, we find that plaintiff failed to lay a proper foundation for the admission of its business records since plaintiff's agent did not demonstrate that she had personal knowledge of plaintiff's business practices and procedures (see Unifund CCR Partners v Youngman, 89 AD3d 1377 [2011]; West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949 [2002]). Thus, we cannot agree with the City Court that plaintiff established its prima facie entitlement to judgment as a matter of law. Consequently, the order is reversed and plaintiff's motion for summary judgment denied.

In view of the foregoing, we pass upon no other issue.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.

Decision Date: March 06, 2012

20120306

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