American Express Bank FSB v Tancreto

[*1] American Express Bank FSB v Tancreto 2015 NY Slip Op 51079(U) Decided on July 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2013-1802 K C

American Express Bank FSB, Appellant,

against

Felicia Tancreto, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered September 25, 2012. 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 the entry of a judgment in favor of plaintiff in the principal sum of $16,107.12.

In this action to recover the principal sum of $16,107.12 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.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Defendant acknowledged that she had entered into a credit card agreement with plaintiff and that she owed a debt to plaintiff on account of her use of the credit card issued to her by plaintiff in accordance with their agreement. While defendant asserted that, prior to commencement of the instant action, she had attempted to negotiate with plaintiff as to a payment plan, she did not allege that the parties had ever reached any compromise. Consequently, plaintiff is entitled to judgment on its cause of action for breach of a credit card agreement (see Citibank [S.D.], N.A. v Keskin, 121 AD3d 635 [2014]; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522 [2012]; Citibank [S.D.] N.A. v Sablic, 55 AD3d 651 [2008]; Feder v Fortunoff, Inc., 114 AD2d 399 [1985]). In view of the foregoing, we do not consider plaintiff's remaining arguments. Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $16,107.12.

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

Decision Date: July 14, 2015