American Express Bank, FSB v Bienenstock

[*1] American Express Bank, FSB v Bienenstock 2015 NY Slip Op 50905(U) Decided on June 11, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2013-1800 K C

American Express Bank, FSB, Appellant,

against

Zev Bienenstock, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered January 8, 2013. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial before a different judge.

In this action to recover the principal sum of $16,390.86 for, among other things, breach of a credit card agreement and based on an account stated, plaintiff appeals from a judgment of the Civil Court which, after a nonjury trial, dismissed the complaint. During the trial, the court had refused to admit into evidence various documents proffered by plaintiff, including a cardmember agreement and monthly statements setting forth the amount due each month. In its decision, the Civil Court noted that it had refused to admit those documents based on its having taken judicial notice of facts in "its own files." As a result, the court found that plaintiff had failed to establish its case.

"[F]undamental fairness dictates that [a trial court] should provide the parties with advance notice of its intention to" take judicial notice of facts (Chasalow v Board of Assessors, 176 AD2d 800, 804 [1991]). As the Civil Court did not give the parties advance notice of its intention to take judicial notice, the court improperly considered the "facts" of which it took judicial notice. Consequently a new trial is required.

We note in passing that, even if the court could properly take judicial notice of the "facts" referred to in the court's decision, an issue we need not here reach, the "facts" the court relied upon do not support the ultimate legal conclusion reached by the court.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial before a different judge.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: June 11, 2015