Discover Bank v Williams

[*1] Discover Bank v Williams 2010 NY Slip Op 50127(U) [26 Misc 3d 1217(A)] Decided on January 27, 2010 Mount Vernon City Ct Seiden, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2010
Mount Vernon City Ct

Discover Bank, Plaintiff,

against

Sterling A. Williams, Defendant.



2241-09



Crystal S.A. Scott, Esq.

Cohen & Slamowitz, LLP

Attorneys for Plaintiff

P.O. Box 9004

199 Crossways Park Drive

Woodbury, New York 11797

Sterling A. Williams

Defendant pro se

Adam Seiden, J.

In this action seeking to recover the outstanding balance under a credit card agreement, the defendant moves to compel arbitration and to dismiss the action. In response to the motion, the plaintiff consents to a court order compelling arbitration in this matter, but opposes the motion to dismiss.

Plaintiff commenced this action in May 2009 seeking to recover the outstanding balance under a credit card agreement with defendant. In the complaint, plaintiff affirms that the defendant defaulted under the terms of the agreement and that there now remains a balance of $1,487.85 with interest from March 13, 2009. In his Answer, defendant argues that the parties are bound by credit card agreement to settle disputes through binding arbitration, not by litigation, upon the election of either party. Defendant admits accepting plaintiff's credit card offer and utilizing the account for well over 13 years. Defendant affirms that after experiencing financial hardship, he enrolled in a debt management program to satisfy the debt and that he [*2]needs time to settle the debt. On the motion, defendant argues that plaintiff's requested balance is not true indebtedness, but a balance of inflated late fees and a recurring excessive monthly compounded interest rate.

In response to the motion, plaintiff does not oppose defendant's request for an arbitration proceeding but requests that said proceeding be initiated by defendant in the forum set forth in the Agreement. Plaintiff opposes defendant's application seeking dismissal of the action.

Under CPLR 3211(a)(1), a court may dismiss a complaint based upon a defense founded on documentary evidence where the proffered evidence disposes of plaintiff's claim as a matter of law (See Johnson v Chase Manhattan Bank USA, N.A., 2 Misc 3d 1003A (Supt Ct. New York Co. 2004) (citing Leon v Martinez, 84 NY2d 83 (1994); Bronxville Knolls, Inc. V Webster Town Center Partnership, 221 AD2d 248 (1st Dept 1995); Talbi v ZCWK Assocs., 179 AD2d 475 (1st Dept 1992)).In the instant matter, defendant has argued that an arbitration agreement exists amongst the parties. Plaintiff has not opposed this claim nor does plaintiff oppose defendant's application to submit this claim to arbitration.

Accordingly, the Court finds that the complaint must be dismissed as a matter of law because the action is specifically barred by the terms of the credit card agreement entered into by the parties, which provides for arbitration in the event of a default (Johnson v Chase Manhattan Bank USA, N.A., supra.

Defendant's motion to dismiss is granted. The parties are free to set up an arbitration proceeding pursuant to their agreement.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion:

Notice of Motion, dated September 3, 2009, Affidavit in support. Affirmation in Response, dated September 23, 2009.

Dated:January 27, 2010

Mount Vernon, New York

____________________________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon