State Farm Bank F.S.B. v Dekom

[*1] State Farm Bank F.S.B. v Dekom 2017 NY Slip Op 51954(U) Decided on December 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 28, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
2016-956 N C

State Farm Bank F.S.B., Respondent,

against

Martin Dekom, Appellant.

Martin Dekom, appellant pro se. Foster & Garbus, LLP (Annette T. Altman, Esq.), for respondent.

Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), entered February 9, 2016. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action to recover the principal sum of $14,672.48 for breach of a credit card agreement, and upon an account stated. In a pre-answer motion, defendant moved to dismiss the complaint pursuant to, among other things, CPLR 3211 (a) (3) and (7). Defendant argued that plaintiff lacked standing to sue since it had failed to establish a valid assignment of the credit card account. Additionally, defendant argued that plaintiff is barred from collecting the alleged debt since it is a debt collector. The District Court denied the motion, and defendant appeals.

"On a defendant's motion to dismiss the complaint based upon the plaintiff's lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" (MLB Sub I, LLC v Bains, 148 AD3d 881, 881-882 [2017]; see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Here, defendant relied upon letters from a collection [*2]agency and plaintiff's attorneys to establish that the credit card account had been assigned by plaintiff. However, neither letter supports a finding that the alleged debt had been assigned. Since defendant failed to meet his burden of establishing, prima facie, that plaintiff lacks standing to sue as a matter of law, plaintiff had no burden of affirmatively establishing its standing as a matter of law (see MLB Sub I, LLC, 148 AD3d at 882). Consequently, that branch of the motion was properly denied by the District Court.

Defendant's remaining contentions with respect to the branches of the motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7) are either without merit or are unpreserved for appellate review.

Accordingly, the order, insofar as appealed from, is affirmed.

MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 28, 2017