Sterling Recoveries, Inc. v Mejia

[*1] Sterling Recoveries, Inc. v Mejia 2009 NY Slip Op 52647(U) [26 Misc 3d 129(A)] Decided on December 29, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
.

Sterling Recoveries, Inc., Plaintiff-Respondent, 570609/09

against

Elizabeth Mejia, Defendant-Appellant.

Defendant appeals from (1) an order of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), entered June 25, 2007, which granted plaintiff's motion for summary judgment in the principal sum of $21,054.06, and (2) an order (same court and Judge), entered May 12, 2008, which, upon reargument, adhered to the prior determination.

Per Curiam.

Order (Geoffrey D. Wright, J.), entered May 12, 2008, modified to the extent of reducing plaintiff's recovery to the sum of $14,726.94, with interest from March 31, 2004, and remanding the matter to Civil Court for calculation of such interest and entry of judgment accordingly; as modified, affirmed, without costs. Appeal from order (same court and Judge), entered June 25, 2007, dismissed, without costs, as superseded by the appeal from the order on reargument.

Plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on its cause of action for the amount owed on the credit card issued to defendant. In opposition, defendant failed to raise a triable issue as to liability. Although plaintiff failed to annex a copy of its complaint to the motion papers, the record was "sufficiently complete" and a copy of the amended complaint is contained in the record on appeal (see Green v Wood, 6 AD3d 976 [2004]; see also Trump Village Section 3, Inc. v New York State Hous. Fin. Agency, 307 AD2d 891, 894 n 3 [2003], lv denied 1 NY3d 504 [2003]).

Inasmuch as plaintiff failed to establish its entitlement to a 16% per annum rate of interest, we modify to the extent of granting plaintiff interest at the statutory rate from March 31, 2004 (see Brady v Zambrana, 221 AD2d 171, 172 [1995]; Levy, King & White Adv., Inc. v Gallery of Homes, Inc., 177 AD2d 967, 968 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 29, 2009