Discover Bank v Maler

[*1] Discover Bank v Maler 2014 NY Slip Op 50144(U) Decided on February 6, 2014 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ
570887/13.

Discover Bank, Plaintiff-Respondent, - -

against

Jennifer L. Maler, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered December 21, 2012, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $4,108.35.

Per Curiam.

Judgment (Margaret A. Chan, J.), entered December 21, 2012, affirmed, with $25 costs.

A fair interpretation of the evidence supports plaintiff's recovery of the credit card debt sued upon under an account stated theory. The trial evidence demonstrated that defendant had an active credit card account with plaintiff from some time in 2006 through June 2008, received and retained itemized monthly statements of account from July 2007 through February 2009, and made periodic payments on the account from July 2007 to June 2008 (see Berkman Bottger & Rodd, LLP v Moriarty, 58 AD3d 539 [2009]; Citibank [S.D.] v Jones, 272 AD2d 815, lv denied 95 NY2d 764 [2000]). It was within the province of the court, as factfinder, to reject defendant's speculative assertion that she "probably" disputed some of the charges while her account was active (see generally American Express Centurion Bank v Gabay, 94 AD3d 795 [2012]). Nor was plaintiff required to submit a signed credit card application in order to establish its claim based on an account stated (see Citibank [S.D.] v Leon, 26 Misc 3d 128[A], 2009 NY Slip Op 52642[U][App Term, 1st Dept 2009]).

The record discloses no evidentiary error warranting reversal. A proper foundation was established for the admission of the billing statements generated by plaintiff, since its witness was sufficiently familiar with plaintiff's corporate records and its record keeping procedures "to aver that the records [are] what [they] purport to be and that [they] came out of [plaintiff's] files" (DeLeon v Port Auth. of NY & N.J., 306 AD2d 146, 146 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: February 06, 2014