Palisades Collection Co., LLC v Velazquez

[*1] Palisades Collection Co., LLC v Velazquez 2010 NY Slip Op 50675(U) [27 Misc 3d 132(A)] Decided on April 16, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570426/09.

Palisades Collection Company, LLC, Plaintiff-Respondent,

against

Maria T. Velazquez, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated June 6, 2008, which granted plaintiff's motion for summary judgment in the principal sum of $8,840.24.

Per Curiam.

Order (Peter H. Moulton, J.), dated June 6, 2008, reversed, with $10 costs, plaintiff's motion for summary judgment denied, and, upon searching the record (see CPLR 3212[b]), summary judgment awarded in favor of defendant dismissing the complaint. The Clerk is directed to enter judgment accordingly.

In this action to recover a credit card debt, plaintiff's evidence in support of its motion for summary judgment was insufficient to establish its prima facie entitlement to judgment as a matter of law on its cause of action for an account stated. The conclusory affidavit of plaintiff's account specialist and selected billing statements, which were not referenced in the account specialist's affidavit and did not reflect any purchases by defendant on the account, were insufficient to establish the existence of an account stated based upon prior transactions between defendant and plaintiff's predecessor in interest (see generally Gould v Burr, 194 AD2d 369, 370 [1993]).Plaintiff also failed to establish its entitlement to summary judgment on its breach of contract claim, as there is no competent evidentiary proof of the existence of an agreement extending credit to defendant (see PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Accordingly, plaintiff's motion should have been denied.

Moreover, because the evidence adduced by the parties on the motion established as a matter of law that plaintiff cannot recover under either of the causes of action asserted in its complaint, defendant, upon our search of the record (see CPLR 3212[b]), is entitled to summary judgment dismissing the complaint. Specifically, the evidence submitted by the parties including the affidavit of plaintiff's account specialist, the selected billing statements and defendant's affidavit demonstrated as a matter of law that no contractual relationship existed between defendant and plaintiff's predecessor in interest, and that no course of dealings evincing an account stated occurred between defendant and plaintiff's predecessor in interest. Rather, the record before us demonstrates that defendant's (former) spouse, not defendant herself, maintained the account with plaintiff and made charges thereon. We note in this connection that a spouse is generally not liable for the individual debts of the other spouse (see 45 NY Jur 2d, [*2]Domestic Relations § 242).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: April 16, 2010