American Express Bank, FSB v Yin Kat Yong
2012 NY Slip Op 30996(U)
April 9, 2012
Supreme Court, Nassau County
Docket Number: 14810-11
Judge: Timothy S. Driscoll
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SUPREME COURT- STATE OF NEW YORK
SHORT FORM ORDER
HON. TIMOTHY S. DRISCOLL
Justice Supreme Court
AMERICAN EXPRESS BANK, FSB
TRIAL/IAS PART: 16
Index No: 14810-
Motion Seq. No.
Submission Date: 2/27/12
YIN KAT YONG A/A Y. K. YONG A/A
YIN K. YONG and UNITED EXPRESS AGENCY
The following papers having been read on this motion:
Notice of Motion , Amended Notice of Motion,
Affirmation in Support and Affidavit....
Affirma tio n in Opposi tio n......................... ................. ............
tio n in Res po nse............... ............ ..............................
Supplemental Affrmation in Further Support....................
This matter is before the Court for decision on the motion fied
Yong (" Yong ) and United Express Agency Corp. (" United"
November 15 , 2011 and submitted on February 27 ,
by Defendants Yin Kat
Defendants ) on
2012. For the reasons set forth below , the
Court grants the motion to the extent that the Court dismisses the Complaint as to Defendant
Y ong, but wil permit
Plaintiff to fie
amended complaint to address the issues raised herein.
Plaintiff is directed to fie and serve the amended complaint within thirty (30) days of the date of
Defendants move for an Order , pursuant toCPLR 9 3211(a)(7), dismissing the
Plaintiff American Express Bank , FSB (" American Express " or " Plaintiff' ) opposes
Defendants ' motion.
The Parties ' History
The Complaint (Ex. A to Wang Aff. in Resp. ) alleges as follows:
At all relevant times , Y ong and United were the holders of an American Express Plum
Card (" Plum Card" ) that enabled them to charge items to an American Express Business Plum
Card Account (" Account" ).
Complaint contains the account number of the Account , which
has been redacted for security reasons.
At all relevant times , Y ong and United were card members on the Account , and thus are
responsible for paying all amounts charged to the Account. By accepting and using the Plum
Card, Y ong and United agreed , jointly and severally, to all of the terms and conditions set forth
in the Agreement between Cardmember and American Express (" Agreement" ). The Agreement
was provided to Yong and United with the Plum Card. The terms and conditions of the
Agreement include the following: 1) Y ong and United agree to be jointly and severally liable for
all amounts charged to the Account; 2) Y ong
and United agree ,
jointly and severally, that the
Minimum Amount Due " as defined in the Agreement for all charges to the Account is due by
the payment due date reflected on the monthly biling
statements mailed by or on behalf of
American Express; 3) Yong and United agreed , jointly and severally, that American Express
may impose late fees , in amounts set forth in the Agreement , on all unpaid amounts; and
4) Y ong and United agreed , jointly and severally, that upon default, as defined in the Agreement
they would pay all reasonable costs , including attorney s fees, incured by American Express
collecting the balance due and in protecting itself from any har
it may suffer as a result of any
The Complaint alleges , furher , that Y ong and United used the Plum Card to charge
various items to the Account for which payment was never made. American Express sent
monthly statements (" Statements ) to Y ong and United which showed the balance due on the
Account. In violation of the Agreement , Yong and United have failed to make the payments
owed to American Express and , as a result, American Express suspended Yong and United'
charging privileges on the Account. The current aggregate balance with respect to the Account
is $342 144. 34.
Plaintiffs counsel did not obtain the Cour' s pennission to submit a sur-reply with respect to the
motion, the Cour wil , in its discretion , consider the sur-reply.
The Complaint contains six (6) causes of action: 1) breach of contract with respect
Yong s Account , 2) account stated with respect to Yong s Account , 3) unjust enrichment with
respect to Y ong s Account , 4) breach of contract with respect to United' s Account , 5) account
stated with respect to United' s Account , and 6) unjust enrichment with respect to United'
In support of Defendants ' motion , Yong affirms that he was employed by United , and the
Plum Card was a card that was used specifically for United , a business corporation. He affrms
furter , that the Plum card was not used , in any capacity, as a personal credit card and that he did
not personally guaranty the Plum Card. He also affirms that he did not sign any contract
personally guaranteeing the payment of the Plum Card , and did riot agree to be personally,
jointly or severally liable under the Agreement.
Plaintiff opposes Defendants ' motion , submitting that Defendants ' argument that
Plaintiff is attempting to pierce the corporate veil reflects a misreading of the Complaint. The
Complaint does not allege that Y ong signed a contract agreeing to be personally liable for
United' s Obligations. Rather , Plaintiff submits , the Complaint alleges that , by applying for
accepting and using the Account, Yong agreed to all of the terms and conditions in the
In reply, Defendants submit that Plaintiff has failed to provide , and the record does not
contain , evidence that would permit the inference that Y ong should be held personally liable for
the balance on the Account.
The Paries '
Defendants submit that they have demonstrated their right to dismissal of the Complaint
in light of the fact that the Complaint fails to establish a cause of action against Y ong who is not
individually, a party to the Agreement. Defendants also argue that , pursuant to CPLR 9 3211(c),
the Cour may treat this as a motion for summar judgment , and Defendants have failed to
provide any evidence supporting the conclusion that Y ong is personally liable for the balance on
Plaintiff opposes Defendants ' motion submitting that the allegations in the Complaint
which include the allegation that Y ong and United agreed to be jointly and severally liable for
the amounts charged to the Account , state a cause of action. Plaintiff also asks that , if the Court
determines that Plaintiff has not sufficiently pleaded a cause of action against either Defendant
it be granted permission to re- plead.
RULING OF THE COURT
Standards of Dismissal
A motion interposed pursuant to CPLR 9 3211 (a)(7), which seeks to dismiss a complaint
for failure to state a cause of action , must be denied if the factual allegations contained in the
complaint constitute a cause of action cognizable at law.
268 (1977); 511
Jennifer Realty Co.
2d 144 (2002). When
entertaining such an application , the Court must liberally construe the pleading. In so doing, the
Court must accept the facts alleged as true and accord to the plaintiff every favorable inference
which may be drawn therefrom.
however , the Court wil
Martinez 84 N. Y.2d 83 (1994). On such a motion
presume as true bare legal conclusions and factual claims which are
flatly contradicted by the evidence.
2d 372 (2d Dept.
Relevant Causes of Action
A cause of action for breach of contract requires allegations of the existence of a
contract , plaintiffs performance under the contract , defendant' s breach ofthe contract and
JH Elec. of New York, Inc.
69 AD. 3d 802 , 803 (2d
For an action on an account stated , where the paries have agreed that the defendant owes
the plaintiff a certain amount of money on an account, the plaintiff must prove that 1) there has
been an accounting of the alleged debt; 2) there is a specific balance due to the plaintiff by the
defendant; 3) the defendant expressly or impliedly promised to pay the plaintiff; and 4) the
defendant has not paid.
Breindel 5 AD. 2d 1007 (2d Dept. 1958);
Board ofEduc. of City of New York 22 AD. 3d 833 (2d Dept. 2005);
Mendel' s Auto Parts, Inc. 150 AD. 2d
768 (2d Dept. 1989).
The essential inquiry in any action for unjust enrichment is whether it is against equity
and good conscience to permit the defendant to retain what is sought to be recovered. Such a
claim is undoubtedly equitable and depends upon broad considerations of equity and justice.
Generally, courts wil
1) a benefit has been conferred on defendant under
mistake of fact or law; 2) the benefit stil remains with the defendant; and 3) the defendant'
conduct was tortious or fraudulent.
Paramount Film Distributing Corp.
New York 30 N. Y.2d
415 421 (1972). An unjust enrichment claim is not available where it simply duplicates , or
replaces , a conventional contract or tort claim.
Verizon New York, Inc.
LEXIS 583 , * 19 (2012).
C. Leave to Amend
Leave to amend is to be freely given , absent prejudice or surrise directly resulting from
the delay in seeking leave , unless the proposed amendment is palpably insuffcient or patently
Aurora Loan Services, LLC
devoid of merit.
citing CLR 9 3025(b);
Thomas 70 ADJd 986 , 987 (2d Dept. 2010),
Mancuso 49 AD. 3d 220 222 (2d Dept. 2008).
Application of these Principles to the Instant Action
The Cour notes that the Complaint does not contain a copy of the Agreement , or set
forth specific language from the Agreement that reflects the paries ' intention that Yong be
responsible for charges on the Account which is a business account. In addition , the Complaint
does not set forth facts explaining why, ifYong is not liable for the charges pursuant to the terms
of the Agreement , there is a basis to hold him liable under the theory of unjust enrichment or
account stated. Moreover , although Defendants have suggested that the Court convert their
motion to one for summar judgment , Defendants also have not provided documentation in
support of their contention that there is no basis to hold Defendant Y ong liable for the charges on
In light of the foregoing, the Cour grants Defendants ' motion to dismiss the Complaint
as to Defendant Yong. The Cour will , however , permit Plaintiff to fie
Plaintiff is directed to fie and serve the amended complaint within thirty (30) days of the date of
Counsel for the paries are directed to appear before the Cour for a Preliminar
Conference on June 13
2012 at 9:30 a.
DATED: Mineola , NY
April 9 ,
HON. TIMOTHY S. DRISCO L
APR 11 2012
COUNTY CLER'K' S OFFICE