American Express Travel Related Servs. Co., Inc. v Hallmark Capital Group, LLC

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American Express Travel Related Servs. Co., Inc. v Hallmark Capital Group, LLC 2017 NY Slip Op 31369(U) June 26, 2017 Supreme Court, New York County Docket Number: 158751/2014 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/27/2017 12:42 PM 1] NYSCEF DOC. NO. 27 INDEX NO. 158751/2014 RECEIVED NYSCEF: 06/27/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. KATHRYN E. FREED, J.S.C. Justice 2 --- ----------------------------------------------------------------------------X AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., INDEX NO. Plaintiff, 158751/2014 MOTION DATE MOTION SEQ. NO. -v- 002 HALLMARK CAPITAL GROUP, LLC, DECISION AND ORDER Defendant. -------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 16, 17, 18, 19, 20, 21, 22, 23, 24,25,26 were read on this application to/for Summary Judgment Upon the foregoing documents, it is ordered that the motion is granted. In this action seeking to collect monies allegedly overdue on credit card accounts issued to defendant Hallmark Capital Group, LLC, plaintiff, American Express Travel Related Services Company, Inc., moves, pursuant to CPLR 3212, for summary judgment on claims of breach of contract, account stated, and unjust enrichment. The motion, which is unopposed, .is granted. Factual and Procedural Background: Plaintiff commenced this action to recover the allegedly outstanding balance of $274,551.91 owed to it by defendant for charges incurred on a corporate card account opened by 158751/2014 AMERICAN EXPRESS TRAVEL vs. HALLMARK CAPITAL GROUP, LLC Motion No. 002 1 of 5 Page 1of5 [*FILED: NEW YORK COUNTY CLERK 06/27/2017 12:42 PM 2] NYSCEF DOC. NO. 27 INDEX NO. 158751/2014 RECEIVED NYSCEF: 06/27/2017 defendant in November of 2013 with account numbers ending in 1000, 1001, 1002, 1003, 1008, I 1009, 2002 and 2008. 1 In this action,! commenced by the filing of a summons and complaint on I September 9, 2014 (Hoefs Aff., at Ex. II; NYSCEF Doc. I), plaintiff alleges that defendant failed to make payments on its accounts when such payments were due, as required by the Corporate I I Services Commercial Account Agreerrient ("the Account Agreement") between the parties, a copy I I of which is annexed to plaintiffs motion. Ex. A to Kier Aff. In its complaint, plaintiff alleged as first, second and third causes of action! breach of contract, account stated, and unjust enrichment, respectively. Id. I Defendant joined issue by serv'ice and filing of its answer on or about October 31, 2014. I I NYSCEF Doc. 4. Counsel for defendant thereafter moved to be relieved as attorney for defendant I I and counsel's application was grant~d by order dated and entered March 29 and 30, 2016, respectively. NYSCEF Doc. 13. Defendant did not retain new counsel since that time. I I I I I Legal Conclusions: I On a motion for summary judgment, the movant bears the initial burden to tender proof in admissible form demonstrating entitlJment to judgment as a. matter of law and the absence of . I .material issues of fact, at which point tHe burden shifts to the party opposing the motion to establish the existence of a triable issue of fact. I See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). I The "[f]ailure to make such showing re'quires denial of the motion, regardless of the sufficiency of I . the opposing papers." Winegrad v Ne~ York Univ. Med. Ctr., 64 NY2d 851, 853 ( 1985). . I Plaintiff has established its entitlement to summary judgment on its claim for breach of contract. In doing so, plaintiff had thl burden of tendering "sufficient evidence that there was a 'Pla;nHffwa;v" ;is right to p<e-judgm:nt ;ntTst aod, by th;s mot;on, a;scont;nues ;is da;m 1 158751/2014 AMERICAN EXPRESS TRAVEL vs • HALLMARK CAPITAL GROUP, LLC Motion No. 002 i I 2 of 5 ro, attorneys' fees Page 2 of 5 [*FILED: NEW YORK COUNTY CLERK 06/27/2017 12:42 PM 3] INDEX NO. 158751/2014 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 06/27/2017 credit card agreement, which the defen9ant accepted by using the credit card and making payments I thereon, and that the agreement was !breached by the defendant when [it] failed to make the I required payments." American Express Bank, FSB v Scali, 142 AD3d 517, 517 (2d Dept 2016). Here, plaintiff established its eLitlement to summary judgment as a matter of law on its I breach of contract claim by submitting Kier's affidavit, and by annexing thereto a copy of the ' Account Agreement between plaintiff and defendant and copies of the monthly billing statements reflecting that defendant used the credit card, made payments on the accounts, and setting forth .! the final balance on the accounts. Exs. A and B to Kier Aff. The statements, which referenced, inter alia, defendant's name, address, 1account numbers, and transactions conducted during the relevant period, the balance owed and t~e payments received, were self-authenticating and a proper I foundation for these business records was laid by Kier. See Capital One Bank (USA) v Koralik, 51 i I Misc3d 74, 76-77 (citations omitted) (App Terril pt Dept 2016). Additionally, plaintiff establ.ishld its prima facie entitlement to summary judgment on its account stated claim. "An account statld is an agreement between the parties to an account based ' I I upon prior transactions between theryi with respect to the correctness of the separate items composing the account and the balance due, if any, in favor of one party or the other." Herrick. ! I Feinstein LLP v Stamm, 297 AD2d 477, 477 (I5t Dept 2002), quoting Chisholm-Ryder Co. v I Sommer & Sommer, 70 AD2d 429, 431 (4th Dept 1979). I '. It has long been held that "[e]ither retention of bills without objection or ~artial payment may give rise to an account stated" entitling the moving party to summary judgmeftin its favor. Jaffe v Brown-Jaffe, 98 AD3d 898, 899 (I" Dept 2012), quoting Morrison Cohen Singer and Weinstein, LLP v Waters, 13 AD3d 51, 52 (I st Dept 2004). 158751/2014 AMERICAN EXPRESS TRAVEL vsl HALLMARK CAPITAL GROUP, LLC Motion No. 002 I 3 of 5 Page 3 of 5 [*FILED: NEW YORK COUNTY CLERK 06/27/2017 12:42 PM 4] NYSCEF DOC. NO. 27 INDEX NO. 158751/2014 RECEIVED NYSCEF: 06/27/2017 I In this case, plaintiff demonstr~ted its prima facie entitlement to summary judgment as a I matter of law on its account stated cla~im by submitting copies of the monthly credit card billing I statements mailed to defendant between November 28, and November 28, 2014 (Ex. B to Kier Aff.), as well as the affidavit of Kierl who states that "[t]here is no record of [d]efendant i e~er asserting a valid unreso,lved objectiorl to the balance shown as due and owing on the monthly I statements provided to [d]efendants." Kier Aff., at par. 8-9. Plaintiff has failed to establiJh that it is entitled to summary judgment on its unjust I ! enrichment claim since it concedes in its complaint (Ex. 1 to Hoefs Aff., at pars. 3, 4, 10-14) that I it had an express contract with defendant. See Douglas Elliman, LLC v East Coast Realtors, Inc., 149 AD3d 544, 544 (1st Dept 2017), diting Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d I I 382, 388 (1987). However, since plaintiff recovers herein the full amount demanded in its I complaint, this cause of action is dism!ssed as academic. I Therefore, in accordance with lhe foregoing, it is hereby: I i I ORDERED that the motion by plaintiff American Express Travel Related Services Company, Inc. seeking summary judg~ent on its complaint as against defendant Hallmark Capital I ! I Croup, LLC is granted as to plaintiff;s first and second causes of action sounding in breach of I I I contract and account stated, respectively; and it is further · ORDERED that the Clerk is hereby directed to enter judgment in favor of plaintiff and I against defendant in the amount of $274,551.91 on plaintiffs first two ~auses of action, together with costs and disbursements; and it is further I 158751/2014 AMERICAN EXPRESS TRAVEL Motion No. 002 J.I HALLMARK CAPITAL GROUP, LLC 4 of 5 I Page4 of 5 [*FILED: NEW YORK COUNTY CLERK 06/27/2017 12:42 PM 5] NYSCEF DOC. NO. 27 INDEX NO. 158751/2014 RECEIVED NYSCEF: 06/27/2017 ORDERED that plaintiffs third cause of action sounding in unjust enrichment is dismissed as academic; and it is further ORDERED that plaintiff, within 20 days of the posting of this order to NYSCEF, shall I I serve a copy of the same, with notice of entry, on defendant; and it is further ORDERED that this constitutes the decision and order of the court. 6/26/2017 DATE I CHECK ONE: CASE DISPOS~D GRANTED I I D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 158751/2014 AMERICAN EXPRESS TRAVEL vs.iHALLMARK CAPITAL GROUP, LLC ! Motion No. 002 5 of 5 D D OTHER REFERENCE Page 5 of 5

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