FIA Card Servs., N.A. v Ashkinazy

[*1] FIA Card Servs., N.A. v Ashkinazy 2015 NY Slip Op 50974(U) Decided on June 30, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570442/15

FIA Card Services, N.A., Plaintiff-Respondent,

against

Larry Ashkinazy, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.) dated November 13, 2013, which granted plaintiff's motion for summary judgment.

Per Curiam.

Order (Robert R. Reed, J.) dated November 13, 2013, reversed, with $10 costs, motion denied and matter remanded for further proceedings.

In this action to collect on a credit card debt, plaintiff failed to demonstrate a prima facie entitlement to summary judgment as a matter of law on its unpleaded account stated cause of action, since it submitted no evidence establishing that statements of account were sent to defendant and retained by him without objection (see Citibank [S.D.] v Jones, 272 AD2d 815 [2000], lv denied 95 NY2d 764 [2000]). In addition, although the complaint and affidavit of plaintiff's custodian of records indicate that defendant is in default under account number ending in 609, the statements of account annexed to the motion papers reference a different account and no explanation is provided for the discrepancy.

In light of the plaintiff's failure to meet its prima facie burden, its motion for summary judgment should have been denied, without regard to the sufficiency of the defendant's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). We note, however, that defendant's present arguments regarding service of process and the applicability of various federal statutes are raised for the first time on appeal and are, therefore, unpreserved (see Diarrassouba v Consolidated Edison Co. of NY Inc., 123 AD3d 525 [2014]). In any event, the claims are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 30, 2015