The opinion
Wimberly v Spring Bank, N.A.
2025 NY Slip Op 30943(U)
March 24, 2025
Supreme Court, New York County
Docket Number: Index No. 651535/2022
Judge: Emily Morales-Minerva
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
[FILED: NEW YORK COUNTY CLERK 03/24/2025 04:44 P~ INDEX NO. 651535/2022
NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 03/24/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. EMILY MORALES-MINERVA PART 42M
Justice
------------------------------------------------------------------------------X INDEX NO. 651535/2022
JASON WIMBERLY, MOTION DA TE 02/13/2025
Plaintiff,
MOTION SEQ. NO. 010
-v-
SPRING BANK, N.A., DECISION+ ORDER ON
MOTION
Defendant.
--------------------------------- ------------ --- ------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 010) 169, 170, 171, 172,
173
were read on this motion to/for DISMISSAL
APPEARANCES:
Jason Wimberly, prose.
Kaufman Dolowich LLP, Woodbury, New York (Brett A. Scher,
Esq., of counsel) for Defendant.
HON. EMILY MORALES-MINERVA:
In this breach of contract action, plaintiff JASON
WIMBERLY, moves, by notice of motion (sequence no. 010), for the
third time, for orders (1) dismissing the counterclaim of
defendant SPRING BANK, N.A. pursuant to CPLR § 3211 (a) (5) and
(7) ; 1 and (2) striking the affirmative defenses of defendant
SPRING BANK, N.A. Defendant appears and opposes the motion.
l CPLR § 3211 (a) provides, as pertinent here, "A party may move for judgment
dismissing one or more causes of action asserted against him on the ground
that:
"(5) the cause of action may not be maintained because of arbitration and
award, collateral estoppel, discharge in bankruptcy, infancy or other
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Motion No. 010
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For the reasons set forth below, plaintiff's motion (seq.
no. 010) is denied entirely.
BACKGROUND
On January 24, 2018, defendant SPRING BANK N.A. (defendant)
loaned plaintiff JASON WIMBERLY (plaintiff) $1,500.00 (the loan)
pursuant to a duly executed Promissory Note (the Note) (see New
York State Electronic Filing System [NYSCEF] Doc. No. 004,
Promissory Note, dated January 24, 2018). Pursuant to the Note,
plaintiff agreed to repay the loan in 24 semi-monthly payments
beginning on February 28, 2018, and ending on February 15, 2019
(see id.). Plaintiff failed to repay the loan in full by
February 15, 2019.
Thereafter, plaintiff agreed to repay the loan to defendant
"in exchange for a written agreement stipulating that
[defendant] would promise to remove the loan entry from
plaintiff's credit reports" (NYSCEF Doc. No. 001, Complaint)
On or about November 24, 2020, an employee of defendant
allegedly agreed, during a telephone call, to remove plaintiff's
past due loan balance from the records of the national credit
reporting services {see NYSCEF Doc. No. 001, Complaint).
disability of the moving party, payment, release, res judicata, statute of
limitations, or statute of frauds; or
"(7) the pleading fails to state a cause of action."
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Motion No. 01 0
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However, this oral agreement was never memorialized in writing,
and therefore, plaintiff did not repay the loan. The past due
loan continues to appear on plaintiff's credit report (see id.)
on April 04, 2022, plaintiff commenced the instant action
against defendant for breach of contract. In the complaint,
plaintiff alleges that the oral agreement by defendant's
employee constitutes a binding contract, and defendant's failure
to remove the past due loan from plaintiff's credit reports
constitutes a breach of said contract (see
----
id.).
Defendant answered, asserting eight affirmative defenses
and counterclaiming for breach of contract. Pursuant to
defendant's counterclaim, it alleges that plaintiff failed to
repay the loan in accordance with the Note, constituting a
breach of contract (see NYSCEF Doc. No. 002, Answer with
Counterclaim) .
On March 27, 2023, plaintiff moved, by notice of motion
(seq. no. 002), for orders striking defendant's affirmative
defenses and dismissing defendant's counterclaim (see NYSCEF
Doc. No. 22, Notice of Motion) . 2 While that motion (seq. no.
002) was pending, plaintiff filed another motion (seq. no. 003)
2
Plaintiff initially moved (seq. no. 001) to strike defendant's affirmative
defenses and to dismiss defendant's counterclaim on December 05, 2022, but
plaintiff withdrew that motion (seq. no. 001) without prejudice (see NYSCEF
Doc. No. 13, Decision and Order, dated December 13, 2022 [N. Bannon,
J.S.C. l).
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Motion No. 01 D
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to dismiss defendant's counterclaim (see NYSCEF Doc. No. 26,
Notice of Motion, dated April 9, 2023).
The court (N. Bannon, J.S.C.) denied plaintiff's motion
(seq. no. 003) to dismiss defendant's counterclaim as
duplicative, because the relief requested was already requested
in a motion (seq. no. 002) pending before the court (see NYSCEF
Doc. No. 31, Decision and Order, dated April 13, 2023 [N.
Bannon, J.S.C.]).
Following the court's (N. Bannon, J.S.C.) decision,
plaintiff filed a motion {seq. no. 005) for leave to file a late
reply to defendant's counterclaim (see NYSCEF Doc. No. 52,
Notice of Motion).
On September 25, 2023, in a combined decision and order,
the court (N. Bannon, J.S.C.) denied plaintiff's motion (seq.
no. 002) to strike defendant's affirmative defenses and dismiss
defendant's counterclaim, but granted plaintiff's motion (seq.
no. 005) for leave to file a late reply to defendant's
counterclaim (see NYSCEF Doc. No. 97, Decision and Order, dated
September 25, 2023 [N. Bannon, J.S.C.]). With respect to
plaintiff's motion (seq. no. 002) to dismiss, the court (N.
Bannon, J.S.C.) held that "plaintiff fail[ed] to establish
entitlement to that relief on the papers submitted - a Notice of
Motion and a Memorandum of Law" (id.)
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Motion No. 010
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On January 09, 2024, plaintiff filed a motion (seq. no.
007) for leave to amend his complaint, as well as his answer to
defendant's counterclaim (see NYSCEF Doc. No. 141, Notice of
Motion) The court (N. Bannon, J.S.C.) denied plaintiff's
motion, and "cautioned [plaintiff] against frivolous motion
practice" (NYSCEF Doc. No. 147, Decision and Order, dated
January 17, 2024 [N. Bannon, J.S.C.]).
Thereafter, the instant matter was transferred to the
undersigned, and plaintiff filed a motion, by order to show
cause (seq. no. 009), for orders dismissing defendant's
counterclaim and striking defendant's affirmative defenses (see
NYSCEF Doc. No. 164, Order to Show Cause, dated January 27,
2025). The undersigned declined to sign the order to show cause
(mot. seq. no. 009) based on the fact that the relief requested
was previously denied by the court's (N. Bannon, J.S.C.)
September 25, 2023 decision and order (see NYSCEF Doc. No. 168,
Order to Show Cause, Decline to Sign).
Now, plaintiff moves, for the third time, for orders (1)
dismissing defendant's counterclaim pursuant to CPLR § 3211
(a) (5) and (7); and (2) striking defendant's affirmative
defenses. Defendant appears and opposes.
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Motion No. 010
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NYSCEF DOC. NO. 174 RECEIVED NYSCEF: 03/24/2025
ANALYSIS
Rule 3211 (e) of the CPLR, which governs motions to
dismiss, explicitly provides:
"At any time before service of the responsive pleading is
required, a party may move on one or more grounds set forth
in subdivision (a) of this rule, and no more than one such
motion shall be permitted"
(emphasis added). An exception to this one-motion rule exists
where, in disposing of the pre-answer motion, the court does not
consider the merits of the application (see generally 2497
Realty Corp. v Fuentes, 232 AD3d 451 [1st Dept 2024); Rivera v
Board of Educ. of the City of New York, 82 AD3d 614, 614 [2011)
[citations omitted]).
Here, plaintiff's initial motion (seq. no. 002) to dismiss
defendant's counterclaim was considered on the merits (see
NYSCEF Doc. No. 97, Decision and Order, dated September 25, 2023
[N. Bannon, J.S.C.]). Thereafter, the undersigned declined to
sign plaintiff's order to show cause (mot. seq. no. 009) to
dismiss, reasoning that the relief requested was previously
denied by the court's (N. Bannon, J.S.C.) decision and order
dated September 25, 2023 (see NYSCEF Doc. No. 168, Order to Show
Cause, Decline to Sign). Now, plaintiff again moves -- this
time, subsequent to service of plaintiff's answer to defendant's
counterclaim -- for the same relief. No such exception to the
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Motion No. 01 O
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one-motion rule exists here, and plaintiff's motion (seq. no.
010) to dismiss defendant's counterclaim is denied.
With respect to plaintiff's request for an order striking
defendant's affirmative defenses, the court's (N. Bannon,
J.S.C.) substantive decision on this issue constitutes the law
of the case, and cannot be relitigated in the context of this
motion (see Chanice v Fed. Exp. Corp., 118 AD3d 634 [1st Dept
2 014] [finding that the doctrine of the law of the case applies
to legal determinations that were necessarily resolved on the
merits in a prior decision, and to the same questions presented
in the same case] ; see also Teshabaeva v __ Family Home Care
Services of Brooklyn and Queens, Inc., 227 AD3d 487, 487 [1st
Dept 2024] [holding that "the law of the case doctrine applies to
the instant matter as the court has expressly and unambiguously
rejected defendants' arguments on three occasions"]; Lee v Chan
Ka Luk, 127 AD3d 612 [1st Dept 2015]) .
Further, plaintiff is again cautioned against the filing of
frivolous motions -- the relief requested in the instant motion
is duplicative of the relief requested in plaintiff's rejected
order to show cause (see Rules of the Chief Administrator of the
Courts [22 NYCRR] § 13 0-1. 1 [c] ["conduct is frivolous if [] it
is completely without merit in law []; it is undertaken
primarily to delay or prolong the resolution of the litigation,
or to harass or maliciously injure another"]; see also
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Motion No. 010
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Teshabaeva, 227 AD3d at 487 [concluding that "defendants' fourth
appeal from the motion court's order to this Court, in which
they raise the same issues that they had a full and fair
opportunity to litigate" was frivolous, and imposing frivolous
appeal sanctions against defendants for $10,000.00]).
Accordingly, it is
ORDERED that motion (sequence no. 010) of plaintiff JASON
WIMBERLY to dismiss the defendant's counterclaim and strike
defendant's affirmative answers is denied entirely; and it is
further
ORDERED that the parties shall appear for a virtual status
conference in Part 42 on June 16, 2025 at 11:00 A.M.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Motion No. 010
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