HSBC Bank USA v Schulze

[*1] HSBC Bank USA v Schulze 2005 NY Slip Op 51529(U) [9 Misc 3d 128(A)] Decided on September 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2004-1709 S C

HSBC Bank USA FORMERLY KNOWN AS MARINE MIDLAND BANK, Appellant,

against

Joseph Schulze A/K/A JOSEPH-THEODORE SCHULZE, Respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), entered October 26, 2004. The order denied plaintiff's motion for summary judgment.

Order unanimously modified by providing that plaintiff's motion for summary judgment is granted as to its cause of action based on an account stated in the principal sum of $8,995.69; as so modified, affirmed without costs.

In this action for breach of a credit card agreement and for an account stated, plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on
the cause of action for breach of contract. However, in an action for an account stated, the defendant's receipt and retention of a plaintiff's account without objection within a reasonable period of time entitles the plaintiff to summary judgment on the account independent of the original obligation (see Werner v Nelkin, 206 AD2d 422 [1994]). Accordingly, we find that plaintiff established said cause of action as a matter of law (see Citibank [S.D.] v Jones, 272 AD2d 815 [2000]). We note that there is no basis to award attorney's fees on the cause of action for an account stated (see Chase Manhattan Bank [Nat. Assn.], Bank Americard Div. v Hobbs, 94 Misc 2d 780 [1978]).
Decision Date: September 20, 2005