The facts of this matter are fully set forth in the prior decision of this Court (NY State Corr. Officers & Police Benevolent Assn. v Brockway, 76 Misc 3d 1205[A], 2022 NY Slip Op 50830[U] [Sup Ct, Washington County 2022]). Briefly, New York State Correctional Officers and Police Benevolent Association, Inc. (hereinafter NYSCOBA) filed a complaint to recover judgment against defendant, a Corrections Officer at Great Meadow Correctional Facility in Comstock, Washington County (hereinafter Great Meadow). ^{[FN1] [FN2]} Defendant, as a Corrections Officer at Great Meadow was a member of plaintiff, which has a Rainy Day Fund with the stated purpose of "provid[ing] supplemental income for qualifying members who are suspended without pay for disciplinary reasons for incidents that occur[red] while on duty."

Upon defendants suspension and after signing and submitting a Rainy Day Fund Application and Agreement (hereinafter Agreement) on November 14, 2017, defendant received supplemental income while suspended from his duties as a corrections officer. The Agreement states, in pertinent part:

"I hereby understand that by submitting this application and signing this document, I agree that if by settlement, arbitration or other means, I am restored to the payroll for any period of time for which payment is received from the Fund, I shall reimburse to [plaintiffl the amount paid to me during my period of suspension...... ..As a condition of receiving benefits under this fund, I hereby assign to [plaintiff] any back pay I subsequently receive.. ..." (NYSCEF Doc. No. 50)

By Arbitrator's Opinion and Award dated February 4, 2019 (hereinafter Award), defendant received "a six (6) month disciplinary suspension without pay and accruals effective [*2]November 14, 2017 through May 14, 2018," with the Arbitrator further finding that defendant was "to be made whole for all pay, benefits and accruals for the period following his six (6) month disciplinary suspension commencing May 15, 2018 through the date of his return to the payroll." Defendant received payments totaling $45,500.00 from The Rainy Day Fund and subsequently received $27,500.00 as a result of the Award. Accordingly, defendant was required to reimburse plaintiff $27,500.00.^[FN3]

On March 28, 2019, Frank Gilbo [hereinafter Gilbo]— plaintiffs treasurer — sent a letter to defendant advising that he was required to reimburse plaintiff the amount paid to him during the period of suspension for which he was awarded back pay. Defendant failed to remit payment and on November 26, 2019 Gilbo sent a second letter advising that payment must be received within 30 days. Gilbo further advised, "If you are having trouble meeting your obligation, please contact me in order to establish if a payment plan is appropriate and necessary" [emphasis in original].

Defendant responded by email to Gilbo that same date stating, "I'm sending this communication to inform you that I intend to pay 100 dollars a pay period until my debt with [plaintiff] is settled". Defendant thereafter paid plaintiff $100.00 on December 15, 2019; $100.00 on June 16, 2020; $200.00 on August 5, 2020; and $200.00 on February 16, 2021 leaving an unpaid balance of $26, 250.00. Plaintiff asserts defendant breached the Agreement by failing to pay plaintiff for money he was reimbursed as a result of the Award.

Plaintiff now moves for summary judgment. Motions for summary judgment are governed by CPLR 3212, where the proponent must establish the absence of a question of material fact which would preclude such an award. [see SCPLR 3212; Zuckerman v. City of New York, 49 NY2d 557 ( 1980); St Claire v. Empire General Contracting & Painting Corp., 33 AD3d 611 (2nd Dep't 2006)]. A movant has the initial burden of showing that no genuine issue of material fact exists. [Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993); Alvarez v. Prospect Hospital, 68 NY2d 320 (1986)] If this burden is met, the burden shifts to the opponent of the motion to demonstrate that a triable issue of fact exists. (see DiBartolomeo v St. Peter Hosp. of City of Albany, 73 AD3d 1326, 1326 [3d Dept 2010]).

" [A] cause of action for breach of contract requires that plaintiff show the existence of a contract, the performance of its obligations under the contract, the failure of defendant to perform its obligations and damages resulting from defendant's breach" (GRJH Inc. v 3680 Props.. Inc., 179 AD3d 1177, 1 178, 116 N.Y.S.3d 437 [3d Dept 2020]). In support of its motion, plaintiff submitted, among other things, the Agreement, the Rainy Day Fund Policy, defendant's Award, statement of defendants account balance, plaintiffs letters demanding repayment. defendant's email response agreeing to make payments every pay period and the affirmation of Mary Collins f/k/a/ Mary Gulino, plaintiffs officer manager.

These documents establish that defendant entered into a written agreement with plaintiff on November 14, 2017 through which he agreed to assign his back pay to plaintiff in order to reimburse it for the amount paid to him during his suspension for which he received back pay. [*3]Between November 28, 2017 and February 13, 2019,received $45.500 from the Rainy Day Fund. (NYSCEF Doc. No. 53) Through the Award, defendant was given back pay in the amount of $27,500.00 and as a result, pursuant to the Agreement, plaintiff was entitled to be reimbursed that amount. (NYSCEF Doc. Nos. 45 110 and 50) When plaintiff did not receive any payment from defendant, it sent demand letters to him in March, May and November 2019. On November 26, 2019, defendant agreed to make a $100.00 payment per pay period toward the debt and thereafter made sporadic payments until February 16, 2021. (NYSCEF Doc. No. 45 at 115) Plaintiff is owed $26,250.00.

With this proof, plaintiff satisfied its prima facie burden in support of its motion for summary judgment by tendering evidence that defendant had accepted $45,500.00 pursuant to the Agreement with plaintiff. through the Award he received back pay totaling $27,500.00 and was therefore required to pay this amount to plaintiff. Defendant subsequently breached the Agreement by failing to make any payments toward his debt since February 16, 2021. (see American Express Bank, FSB v Scali, 142 Al)3d 51 7, 517-518, 36 N.Y.S.3d 220 [2d Dept 20161; Citibank [S.D.] N.A. v Sablic. 55 AD3d 651, 652, 865 N.Y.S.2d 649 [2d Dept 20081; Citibank v, Roberts, 304 Al)2d 901, 902, 757 N.Y.S.2d 365 [3d Dept 20031; Bank of Am.,N.A. v Neroni, 226 AD3d 1273, 1275 [3d Dept 2024]).

Accordingly, the prima facie showing of entitlement to judgment as a matter of law has been made. The burden has shifted to the defendant to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which requires a trial of the action. The defendant has failed to do so. (Whiteside v Stachecki, 180 AD3d 1291, 118 N.Y.S.3d 800 [3d Dept 2020]).

In opposition to plaintiffs motion, defendant submitted an attorney affidavit based upon information and belief, asserting there is a genuine dispute of material fact as to the number of contracts defendant is alleged to have entered into with plaintiff as well as the terms and validity of each contract. Specifically, defendant contends the Agreement and defendant's November 26, 2019 email to Frank Gilbo are two separate agreements because the latter created an installment plan and effectively extinguished any obligation defendant had to pay the amount in full under the Agreement. (NYSCEF Doc. No. 57 at 1110) The Court disagrees. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue of fact. (Zuckerman, 49 NY2d at 562; Whiteside v Stachecki, 180 AD3d 1291, 1293 [3d Dept 2020]).

Furthermore, the Agreement is clear. Upon receiving his back pay, defendant was required by the terms of the Agreement to assign this back pay to plaintiff. When defendant failed to do so, plaintiff demanded repayment by letter dated March 28, 2019 and May 22, 2019. Defendant, again, failed to remit payment. Plaintiff sent a third letter on November 26, 2019 not only demanding repayment but also offered to consider a payment plan. Defendant responded that day and offered to pay $100.00 per pay period until his debt was paid off, demonstrating the terms of the agreement relative to repayment of the amount due and owing (see Stonehill Capital Mgt. LLC v Bank ofthe W., 28 NY3d 439, 448-449 [2016]; Harris v Schreibman, 200 AD3d 1 1 17, 1124-1 125 [2021]).

Notably, defendant himself does not offer an affirmation asserting that there was not an agreement between the parties, he did not receive any consideration, he has paid the debt in full, he is current on his payments or that he is not required to make any payments. Defendant's attorney's affirmation is insufficient to raise an issue of fact, as the attorney has no firsthand [*4]knowledge of the events and, as such, his affidavit is without probative value (see Webb v Albany Med. Ctr., 151 AD3d 1435, 1437, 59 NYS3d 151 [2017]).

Therefore, having considered NYSCEF document Nos. 44 through 62, it is hereby ORDERED that plaintiffs motion for summary judgment is granted in its entirety; and it is further

ORDERED that plaintiff shall submit a proposed judgment in accordance with this determination within thirty (30) days of the date of this Decision and Order; and it is further ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.