KMT Enters., Inc. v Barkin
Annotate this CaseDecided on July 31, 2012
Civil Court of the City of New York, New York County
KMT Enterprises, Inc., Plaintiff,
against
Larry H. Barkin, Defendant.
1443/12
For plaintiff: Kirschenbaum & Phillips
Farmingdale, NY
Defendant: self-represented
Arlene P. Bluth, J.
DECISION/ORDER
Present: HON. ARLENE P. BLUTH
Judge, Civil CourtRecitation, as required by CPLR §2219(a), of the papers considered in the review of plaintiff's motion for summary judgment and defendant's cross motion to dismiss:
PapersNumbered
Notice of motion and
supporting papers..................................1________
Notice of cross-motion and
supporting papers........................2
Reply and opposition to x-motion3_______
Upon the foregoing cited papers and after argument, plaintiff's motion for summary judgment for the relief sought in the complaint is denied; defendant's cross-motion to dismiss the action on the grounds of improper service is also denied.
In this action, plaintiff, claiming to be the assignee of non-party Chase Bank USA, N.A. ("Chase"), seeks to collect the balance due on a credit card allegedly issued by Chase and used by defendant. The complaint asserts two causes of action: failure to make payments pursuant to the terms of a credit card agreement and an account stated. [*2]
In order to prevail on its motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing. Bethlehem Steel Corp. v Solow, 51 NY2d 870, 872, 433 NYS2d 1015, 414 NE2d 395 (1980). In opposing such a motion, the party must lay bare its evidentiary proof. Conclusory allegations are insufficient to defeat the motion; the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Zuckerman v City of New York, 49 NY2d 557 at 562, 427 NYS2d 595 (1980).
In deciding the motion, the court must draw all reasonable inferences in favor of the non-moving party and must not decide credibility issues. (Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 562 NYS2d 89 [1st Dept 1990]. As summary judgment is a drastic remedy which deprives a party of being heard, it should not be granted where there is any doubt as to the existence of a triable issue of fact (Chemical Bank v West 95th Street Development Corp., 161 AD2d 218, 554 NYS2d 604 [1st Dept 1990]), or where the issue is even arguable or debatable (Stone v Goodson, 8 NY2d 8, 200 NYS2d 627, 167 NE2d 328 [1960]).
No assignment proven
As a threshold issue, plaintiff must prove that it is the assignee of Chase because even if this defendant admitted that he owed money to Chase, he has no obligation to pay it to plaintiff unless and until plaintiff can prove that it has stepped into the shoes of Chase. In other words, just as someone should not part with his money to buy the Brooklyn Bridge without proof that the seller has a right to sell it, someone should not repay a debt to anyone other than the original creditor without sufficient proof that the third party has a right to collect it.
Here, the plaintiff has failed to even come close to proving that it has a right to collect any money which may be owed to Chase. To establish standing, plaintiff is required to submit evidence in admissible form establishing that Chase had assigned its interest in defendant's debt to plaintiff (see Palisades Collection, LLC v. Kedik, 67 AD3d 1329, 1330, 890 NYS2d 230 [4th Dept 2009]). Plaintiff failed to do so here.
In support of its motion for summary judgment, plaintiff submits an affidavit from its officer, Dana Holzer, who states, in a purely conclusory manner, that plaintiff's assignor is Chase. Although she states it as if it is a fact, Ms. Holzer does not set forth a single word or annex a single document to prove that the particular credit card account was actually assigned to plaintiff by Chase.
The Court notes that tucked behind the exhibit A tab, behind a copy of the complaint, but not referred to in that complaint or in Ms. Holzer's affidavit, is a one-page document entitled "Exhibit A Bill of Sale". [FN1] This purported bill of sale is from a nonparty, Turtle Creek Assets, Ltd., and recites that Turtle Creek purchased 352 accounts (apparently identified in some manner on "Exhibit 2" which is not annexed.) from Chase Bank USA, N.A. and sold these accounts to [*3]plaintiff. If true, then the document contradicts Ms. Holzer's unsupported statement that Chase assigned the subject credit card account to plaintiff; according to the stray document, Chase sold some accounts to Turtle Creek, who sold them to plaintiff.
Viewed from any angle, however, there is absolutely no proof that defendant's specific account was one of those 352 accounts sold by Chase. Thus, as plaintiff has failed to show that the subject Chase credit card account was assigned to plaintiff, plaintiff has not shown that it has stepped into Chase's shoes.
No contract proven
Even if plaintiff had shown that it had standing to collect a debt owed to Chase, it would still have to prove that defendant owed Chase money. Plaintiff's complaint claims both breach of contract and an account stated.
In order to establish entitlement to summary judgment on a breach of contract cause of action, the plaintiff must at least establish the existence of an agreement between the parties. Annexed as exhibit B to Ms. Holzer's affidavit is an undated credit card agreement from Chase. Although Ms. Holzer conclusorily states that it is "the credit card agreement" between the parties, the document is undated and lacks defendant's name and signature. There is no indication whatsoever that defendant agreed to its terms. There is not even any showing, or even a claim, that defendant received that agreement and thereafter used the card to signify his acceptance of the agreement. This court finds that plaintiff has failed to show that an agreement was made between defendant and Chase.
No account stated proven
Plaintiff has not shown that an account was stated between Chase and defendant. An "account stated" is an agreement between the parties that a debt is valid and due (Citibank v Jones, 272 AD2d 815, 708 NYS2d 517 [3rd Dept 2000]). When a plaintiff proves that it mailed a bill to defendant and defendant, after receiving the bill, did not object to the amount therein stated due within a reasonable period of time, then the plaintiff is entitled to summary judgment on an account stated, independent of the underlying contract. See Discover Bank v Williamson,
14 Misc 3d 136(A), 836 NYS2d 492 (App Term, 2d Dept 2007).
Ms. Holzer refers to and annexes a series of Chase credit card statements addressed to defendant for the period March 2008 through August 2009 (exhibit C) and then concludes that "monthly statements of account were forwarded to defendant". Just because she has copies of the statements does not mean that they were mailed to defendant or that defendant failed to promptly object thereto. Ms. Holzer fails to explain upon what she bases her conclusions - she fails to show how she "knows" that Chase mailed the statements or that defendant did not object. This court finds that plaintiff has failed to show that an account was stated between Chase and defendant.
Accordingly, because plaintiff has not demonstrated entitlement to judgment as a matter of law on either the breach of contract or account stated cause of action, the burden never shifted to defendant to rebut plaintiff's showing, and plaintiff's motion for summary judgment for the [*4]relief demanded in the complaint is denied.
Improper service not shown
Defendant's cross-motion dismissing the action due to lack of proper service is also denied. In his moving affidavit, defendant states that he bases this motion "on a lack of an affidavit of service, which was not in the court file" (aff., para. 2). Defendant does not set forth in his moving affidavit that he asked a clerk to assist him in locating the affidavit of service, or that he requested a copy of the affidavit of service from plaintiff's attorneys — he just asserts the conclusion that it was not in the file. However, the court computer shows that the affidavit of service was filed on February 17, 2012 and plaintiff, in opposition, produces a copy of the affidavit with the court's "received" stamp dated February 17, 2012. The court notes that defendant interposed an answer shortly thereafter, on February 27, 2012, which was later amended as of right (on March 9, 2012) to include, inter alia, the defense that service was improper.
As defendant's moving affidavit fails to dispute with specificity the facts of the alleged service as sworn to by the process server, and simply asserts that no affidavit of service was ever filed when clearly it was, the burden did not shift to plaintiff to oppose this motion to dismiss on the grounds of improper service. To the extent that defendant specifically refuted the facts in his reply affidavit, "defendant's attempt to remedy the deficiency by submitting [his] affidavit for the first time in reply was improper" Discover Bank v Posner, 2012 NY Slip Op 51382(U) (AT 1st Dept 2012), citing Schulte Roth & Zabel, LLP v Kassover, 28 AD3d 404, 405, 812 NYS2d 874 (1st Dept 2006). Accordingly, the cross-motion is also denied.
The parties are reminded that this matter is scheduled for trial on August 16, 2012 at
9:30 AM in Room 428.
This is the Decision and Order of the Court.
Dated: July 31, 2012__________________
New York, New YorkARLENE P. BLUTH
Judge, Civil Court
bsn by DL on __
Footnotes
Footnote 1: There is no indication whatsoever what document has annexed this purported bill of sale
as "exhibit A". Ms. Holzer's affidavit does not specifically make reference to any exhibit; neither does the complaint.
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