Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STEVEN D'AGOSTINO v. CAPITAL ONE and GARY L. MASON

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0431-15T4

STEVEN D'AGOSTINO,

              Plaintiff-Appellant,

v.

CAPITAL ONE and GARY L. MASON,

          Defendants-Respondents.
__________________________________

              Argued December 7, 2017 – Decided December 18, 2017

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Docket No. DC-
              9606-14.

              Steven D'Agostino, appellant, argued the cause
              pro se.

              Brian M. Block argued the cause for respondent
              Capital One Bank (Mandelbaum Salsburg, PC,
              attorneys; Michael F. Bevacqua, Jr., of
              counsel and on the brief; Brian M. Block, on
              the brief).

              Garland & Mason, LLC, attorneys for respondent
              Gary L. Mason (Gary L. Mason, on the brief).

PER CURIAM
     Plaintiff Steven D'Agostino appeals from an August 12, 2015

order   granting    summary   judgment   to   defendant   Gary   Mason    on

plaintiff's claim that Mason was not entitled to be paid for legal

services he provided to plaintiff.        Plaintiff also challenges a

March 12, 2015 order granting summary judgment to defendant Capital

One Bank (USA) on plaintiff's claims that the bank should not have

billed him after plaintiff used his Capital One credit card to pay

Mason, and that Capital One defamed him by reporting a delinquency

to a credit agency on a different credit card issued by HSBC Bank.1

     On appeal, plaintiff argues the following points:

           I.      The trial [c]ourt harmfully erred by
                   granting Capit[a]l One's [motion for
                   summary judgment].

                   A.   The   trial    [c]ourt     improperly
                        weighed the evidence.

                   B.   Capit[a]l    One's    cashing   of
                        [plaintiff's] "full payment" check
                        constituted        accord      and
                        satisfaction.

                        1.    The clause in the Customer
                              Agreement was unenforceable.

                        2.    Even if the clause in the
                              Customer     Agreement     was
                              enforceable[,] Capit[a]l One's
                              cashing of [plaintiff's] "full
                              payment"      check      still
                              constituted     accord     and
                              satisfaction.

1
   The two orders also dismissed plaintiff's complaint against
both defendants.

                                     2                             A-0431-15T4
                C.   Capit[a]l One is liable for the HSBC
                     judgment and defamation.

         II.    The trial [c]ourt harmfully erred by
                granting Mason's [motion for summary
                judgment].

                A.   The   trial    [c]ourt   improperly
                     weighed the evidence.

                B.   The contract was between Mason and
                     [plaintiff].

                C.   The trial [c]ourt erred in denying
                     motion to amend.

                D.   The causes of action in the instant
                     matter are based on contract law,
                     not    tort   (i.e.    professional
                     negligence).

                E.   Even if an [Affidavit of Merit] was
                     needed, [plaintiff] complied with
                     the statute.

         III. Request the case be reassigned to a new
              judge on remand.

    We conclude that plaintiff's arguments are without sufficient

to warrant discussion in a written opinion.   R. 2:11-3(e)(1)(E).

    Affirmed.




                                 3                          A-0431-15T4