American Express Centurion Bank v Ahad

[*1] American Express Centurion Bank v Ahad 2017 NY Slip Op 51523(U) Decided on November 3, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2016-1004 Q C

American Express Centurion Bank, Respondent,

against

Abdul Ahad, Also Known as Abdul Rahman Ahad, Appellant.

Abdul Rahman Ahad, appellant pro se. Zwicker & Associates, P.C. (Jason P. Verhagen, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 6, 2016. The judgment, entered pursuant to a decision of the same court dated July 7, 2015, after a nonjury trial, awarded plaintiff the principal sum of $16,332.46.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated July 7, 2015 is deemed a premature notice of appeal from the judgment entered April 6, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action to recover for breach of a credit card agreement and based upon an account stated, defendant appeals from a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $16,332.46.

At trial, plaintiff established its entitlement to judgment on its cause of action for breach of a credit card agreement by presenting "evidence that there was an agreement, which the defendant accepted by his use of a certain credit card issued by the plaintiff and payments made thereon, and which was breached by the defendant when he failed to make the required payments" (Citibank [S.D.], N.A. v Keskin, 121 AD3d 635, 636 [2014]; see Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522 [2012]; Citibank [S.D.] N.A. v Sablic, 55 AD3d 651 [2008]). Defendant's testimony at trial, even if true, did not provide a basis for his failure to abide by the terms of the credit card agreement.

We note that we do not consider those factual assertions contained in, or the exhibits attached to, defendant's brief which, not having been presented to the Civil Court, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment is affirmed.

WESTON, J.P., PESCE and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017