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Marino v. Hoganwillig, PLLC

United States District Court, W.D. New York

April 24, 2012

Dominic MARINO, Plaintiff,
v.
HOGANWILLIG, PLLC, Defendant.

Page 493

Kenneth R. Hiller, Seth Andrews, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.

Diane R. Tiveron, HoganWillig, Getzville, NY, for Defendant.

Page 494

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.

I. INTRODUCTION

Plaintiff, Dominic Marino, brings this action alleging that Defendant, HoganWillig, PLLC (" HoganWillig" ), violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a, et seq. (" FDCPA" ). Presently before this Court is HoganWillig's motion for summary judgment. (Docket No. 9.) For the following reasons, that motion is denied.

II. BACKGROUND

A. Facts

In 2009, Marino became indebted to Harlem Anesthesia, PLLC (" Harlem" ) for the fees associated with a medical procedure, which were not entirely covered by his medical insurance. (Marino Affidavit, ¶¶ 3, 4; Docket No. 19.) Marino claims that thereafter his wife called Harlem to inquire whether it would accept $760.00 in full satisfaction of the $1,380.00 debt. ( Id., ¶ 6.) Harlem allegedly agreed and Marino mailed a check to Harlem in that amount in accordance with the agreement. ( Id., ¶ 7.)

Despite Marino's claim that he had settled his debt, Practice First Management, the billing agent for Harlem, forwarded the balance of the debt, $620.00, to HoganWillig for collection in September of 2010. (Defendant's Statement of Facts, ¶ 2; Docket No. 9.) The parties then exchanged a series of letters. On September 8, 2010, HoganWillig sent a payment-demand letter to Marino. ( Id., ¶ 4.) Five days later, HoganWillig received a response from Marino, wherein he (1) instructed HoganWillig to cease and desist contacting him and (2) informed it that he disputed the debt and that he believed it to be extinguished. ( Id., ¶ 5.) Two days after that, on September 15, 2010, HoganWillig forwarded to Marino an itemized bill from Harlem that outlined the charges incurred and the partial payment; there was apparently no record of the alleged accord. ( Id., ¶ 6.) Thereafter, on two occasions, October 8 and 29, 2010, HoganWillig sent a letter to Marino informing him each time that this was his " final" notification and requesting that he pay the debt. ( Id., ¶¶ 9-11.)

Marino did not pay the disputed $620.00, but HoganWillig took no further action on the debt due to an internal policy change regarding the costs and benefits of pursuing claims under $1,000.00. (Diane Tiverton Declaration, ¶¶ 25, 26; Docket No. 10.)

B. Procedural History

Marino filed his complaint in this Court on May 26, 2011. (Docket No. 1.) The next month, on June 27, 2011, HoganWillig filed its answer. (Docket No. 4.) On September 20, 2011, HoganWillig moved for summary judgment, briefing on which concluded on November 14, 2011. This Court then took the motion under consideration.

III. DISCUSSION

A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that " [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is " material" only if it " might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A " genuine" dispute exists " if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. In determining whether a genuine dispute regarding a material fact exists, the evidence and the inferences drawn from the evidence " must be viewed in the light most favorable to

Page 495

the party opposing the motion." Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970) (internal quotations and citation omitted).

" 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) (citation omitted). Indeed, " [i]f, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004) (citations omitted). The function of the court is not " to weigh the ...


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