Portfolio Recovery Assoc., LLC v Ginn

[*1] Portfolio Recovery Assoc., LLC v Ginn 2009 NY Slip Op 51576(U) [24 Misc 3d 137(A)] Decided on July 14, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-941 Q C.

Portfolio Recovery Associates, LLC, Appellant,

against

Tarsha L. Ginn, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered January 9, 2008. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action to recover for breach of a credit card agreement and upon an account stated, the Civil Court denied plaintiff's motion for summary judgment on the ground that plaintiff's supporting affidavits were sworn to before an out-of-state notary and failed to include certificates of conformity as required by CPLR 2309 (c) and Real Property Law § 299-a (1).

The Civil Court should have disregarded the defect in the form of the affidavits since defendant raised no objection thereto (see CPLR 2101 [f]; NYC East-West Acupuncture, P.C. v Maryland Cas. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51762[U] [App Term, 2d & 11th Jud Dists 2008]), and should have considered the merits of plaintiff's motion for summary judgment.

Plaintiff failed to establish its prima facie entitlement to summary judgment on its cause of action for breach of a credit card agreement since plaintiff did not provide proof itemizing the various purchases and transactions allegedly made with the credit card (see Discover Bank v Williamson, 14 Misc 3d 136[A], 2007 NY Slip Op 50231[U] [App Term, 9th & 10th Jud Dists 2007]; Direct Merchant Credit Card Bank v Lazareva, 10 Misc 3d 128[A], 2005 NY Slip Op 51912[U] [App Term, 2d & 11th Jud Dists 2005]).
Additionally, plaintiff failed to adduce evidence sufficient to make out a prima facie showing of its entitlement to summary judgment on the account stated cause of action, because its proof failed to establish that the parties had come together and agreed upon a balance of indebtedness (see Interman Indus. Prods. v R.M.S. Electron Power, 37 NY2d 151, 153-154 [1975]; see generally PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Accordingly, the order denying plaintiff's motion for summary judgment is affirmed albeit on a ground different than the one relied upon by the Civil Court.

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: July 14, 2009