Sherman Acquisition Ltd. Partnership v Thomas

[*1] Sherman Acquisition Ltd. Partnership v Thomas 2005 NYSlipOp 51045(U) Decided on July 1, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 1, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
2004-1594 K C

Sherman Acquisition Limited Partnership, Appellant,

against

Wa-Nona N. Thomas, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Gesmer, J.), entered August 4, 2004, which denied its motion for summary judgment.

Order unanimously reversed without costs and plaintiff's motion for summary judgment granted.

In this action to recover for breach of a credit card agreement and an account stated, plaintiff moved for summary judgment. In support of its unopposed motion, plaintiff attached an affidavit from one of its employees wherein she averred that she had full knowledge of the account stated based upon her review of the books and records of the outstanding balance due on defendant's credit card account. She further alleged that defendant was sent monthly statements detailing the balance due, that the balance remains unpaid and that defendant neither disputed the validity of the balance owed nor did she notify plaintiff's assignor of any defenses, setoffs or counterclaims. In her answer, defendant admitted that she owed the debt and merely stated that she was out of work for most of the year. We find that plaintiff has established an account stated between the parties (see Citibank [S.D.] v Jones, 272 AD2d 815 [2000]) and that no material issue of fact exists. Inasmuch as an account stated is independent of the original obligation (see Werner v Nelkin, 206 AD2d 422 [1994]), plaintiff did not have to submit a signed copy of the credit card agreement in order to prevail on its motion for summary judgment based upon the account stated cause of action (see Schutz v Morette, 146 NY 137 [1895]). Accordingly, plaintiff's motion for summary judgment should have been granted.
Decision Date: July 01, 2005