Capital One Bank (USA), N.A. v Tashman

[*1] Capital One Bank (USA), N.A. v Tashman 2013 NY Slip Op 52163(U) Decided on December 17, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ
.

Capital One Bank (USA), N.A., Respondent,

against

Joseph Tashman Also Known as JOSEPH ALAN TASHMAN, Appellant.

Appeal from a judgment of the City Court of Poughkeepsie, Dutchess County (Katherine A. Moloney, J.), entered July 13, 2012. The judgment awarded plaintiff the principal sum of $2,356.48.

ORDERED that the judgment is affirmed, without costs.

In this action for breach of a credit card agreement and upon an account stated, defendant failed to appear at a pretrial conference. The City Court instructed plaintiff to file inquest papers (see generally Uniform Rules for City Ct [22 NYCRR] § 210.14 [1]). Upon considering plaintiff's papers and defendant's opposition, the court, by order dated July 13, 2012, awarded plaintiff the principal sum of $2,356.48, and a judgment was entered on the same day pursuant to the order. On appeal, defendant contends, in effect, that plaintiff failed to establish liability since it did not submit a signed credit card agreement and/or signed charge slips.

We consider the City Court's instruction to plaintiff to file inquest papers to be an instruction to move for the entry of a default judgment by providing proof of the facts constituting its claim pursuant to CPLR 3215 (f). A defendant who has defaulted is "deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). The affidavit in support of the entry of a default judgment pursuant to CPLR 3215 (f) "need only allege enough facts to enable a court to determine that a viable cause of action exists" (id.); however, the plaintiff is still required to prove damages (see e.g. Reynolds Sec. v Underwiters Bank & Trust Co., 44 NY2d 568 [1978]).

Upon a review of the record, we find that it was not necessary for plaintiff to present a signed credit card agreement and/or signed charge slips. Rather, plaintiff established its cause of action based on an account stated by showing that monthly statements had been sent to defendant and had been retained by defendant without objection (see Citibank [S.D.] v Jones, 272 AD2d [*2]815 [2000]; American Exp Travel Related Svcs v Felix, 29 Misc 3d 134[A], 2010 NY Slip Op 51965[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Citibank [S.D.], N.A. v Macarle, 11 Misc 3d 128[A], 2006 NY Slip Op 50241[U] [App Term, 9th & 10th Jud Dists 2006]). Consequently, plaintiff sufficiently established proof of the facts constituting its claim pursuant to CPLR 3215 (f).

Accordingly, the judgment is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: December 17, 2013