Discover Bank v Durand

[*1] Discover Bank v Durand 2004 NY Slip Op 51426(U) Decided on November 19, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: November 19, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-128 N C

DISCOVER BANK, Respondent,

against

ANNETTE DURAND, Appellant.

Appeal by defendant from an order of the District Court, Nassau County (A. Moser, J.), entered October 27, 2003, which granted plaintiff's motion for summary judgment and set the matter down for a trial limited to the issue of damages.

Order unanimously affirmed without costs.

Plaintiff instituted this action to recover the outstanding balance due on a credit card issued to defendant. Plaintiff's first cause of action alleged a default in payment pursuant to the agreement. Its second cause of action was based on an account stated. The court below granted plaintiff's motion for summary judgment and, in accordance with CPLR 3212 (c), set the matter down for a trial limited to the issue of damages.

Plaintiff's employee stated in his affidavit that monthly statements of the charges incurred and minimum payment due were sent to defendant during the period in question and retained by her without objection. The affidavit and the attached
statements supported plaintiff's contention that defendant breached the agreement during said period by failing to make the minimum payments due. Defendant, in her affidavit in opposition to the motion, did not contest the validity or accuracy of the statements.

An account stated is an agreement between the parties that the debt is valid and due (see Citibank [S.D.] v Jones, 272 AD2d 515 [2000]), and a defendant's receipt and retention of plaintiff's account without objection within a reasonable time entitles plaintiff to summary [*2]judgment on the account stated independent of the obligation (see Warner v Nelkin, 206 AD2d 422 [1994]). In view of the foregoing, the court properly granted plaintiff's motion for summary judgment based on its second cause of action, i.e., an account stated. The other issues raised by defendant on this appeal were considered and found to be without merit.
Decision Date: November 19, 2004