American Express Bank, FSB v Kugelman

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American Express Bank, FSB v Kugelman 2012 NY Slip Op 31318(U) May 4, 2012 Sup Ct, Nassau County Docket Number: 11784/2011 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ----------------------------------------------------------------- )( [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 13 AMERICAN EXPRESS BANK, FSB, DECISION AN ORDER Plaintiff Index No. : 11784/2011 - against- NEIL KUGELMAN a/a NEIL C. KUGELMAN and GOLDSPEED. COM, INC., Original Retu Date: Motion Seq. No. : 001 12/20/11 Defendants. The following named papers numbered 1 to 6 were submitted on this Notice of Motion on Februar 9 , 2012: Pavers numbered: Notice of Motion, AffIrmation and Affdavit in Support Memorandum of Law Affrmations (2) in Opposition Reply AffIrmation The motion by the Plaintiff for an Order pursuant to C. L.R. 3212 directing that summar judgment be entered against the Defendants , NEIL KUGELMAN a/a NEIL C. KUGELMAN and GOLDSPEED. COM, INC. , and in favor of the Plaintiff, AMRICAN E)(PRESS BANK , FSB , is decided as follows: On August 11 , 2011 , the Plaintiff commenced the within action by fting the Sumons and Complaint with the County Clerk of the County of Nassau. The Complaint alleges Defendants failed to pay charges incured on a certin that the Open Line Card issued by the Plaintiff AMERICAN E)(RESS BANK , FSB , to the Defendants , NEIL KUGELMAN a/a NEIL KUGELMAN and GOLDSPEED. COM , INC.. Thereafter, on or about November 6 , 2010 , the [* 2] Defendant NEIL KUGELMAN alk/a NEIL C. KUGELMAN was served with a copy of the Sumons and Complaint pursuat to C. L.R. 308(4). Proof of service was fted on August 2011. On August 17 2011 , the Defendant GOLDSPEED. COM , 15 INC. was served with process pursuant to BCL 306. The Defendants answered the Complaint on or about August 29 2011. The Answer primarly denies knowledge or information suffcient to form a belief as to the trth majority ofthe allegations in the Complaint. Three affIrmative defenses are raised - of the improper service on the two defendants and usur. On a motion for summar judgment , the movant must establish his or her cause of action or defense suffcient to warant a Cour directing COl1. v. Federallns. Co. , 70 N. Y.2d 966 (1988); Rebecchi v. Whitmore 172 A. See judgment in its favor as a matter of law. Fran Alvarezv. Prospect Hosp. , 68 N. Y.2d 320 (1986); 2d 600 (2nd Dept. 1991). " The par opposing the motion, on the other hand, must produce evidentiar proof in admissible form suffIcient to require a trial of material issues of fact" Fran COl1. v. Federal Ins. Co.. Aluminum Sales , 66 N. 2d 965 (1985); Cour is on issue fInding, not issue determining, In this instance , the supra at 967; Rebecchi v. Whitmore. see also supra GTF Mkg. v. Colonial at 601. The focus for the Hantz v. Fishman 155 A.D. 2d 415 (2 Plaintiff has alleged that Defendants Dept. 1989). KUGELMAN and GOLDSPEED. COM , INC. applied for and received an American Express Open Line Card permitting them to charge various items. Plaintiff fuer has alleged that by accepting and utilzing the card , the Defendants agreed to the terms and conditions of the Card Agreement (Garabedian affIdavit , paragraph " 18"). Monthly statements showig payments made , charges and fees incured and items charged were sent to the Defendants without objection (Garabedian affIdavit , paragraphs 20" and " 21 " ). Attached to the moving papers are copies of American Express Open Line of Credit [* 3] statements covering the period from Januar 13 , 2009 (with an opening balance of $79 617. 00) though June 10 , 2011 (with an ending balance of $50 316 11). The statements have both Defendants ' names on them - to wit: Neil Kugelman and Goldspeed. Com , Inc. A copy of a Cardmember Agreement dated June 8 , 2011 , listing the company name (Goldspeed. com) and cardmembername (Neil Kugelman) is attched as Exhibit " 1" to the moving papers. Plaintiff seeks judgment against the defendants on six causes of action (breach of contract account( s) stated and unjust enrchment against each Defendant) in the principal sum of$50 316. costs and reasonable attrneys ' , together with interest fees. In opposition to the moving papers, Defendant NEIL KUGELMAN states that it was his understanding that the account was being set up for the Corporate Entity and was being mailed to my attention. " He states that he does not recall signing any personal guarantee. As par of discovery in this proceeding, the Defendants sought copies of Agreements or Guarantees showing his liabilty (Exhibit " 2" attached to opposing papers). As a preliminar matter , the Defendants have raised two affrmative defenses in their Answer concerning a lack of personal jurisdiction due to improper service , and third affrmative defense based on alleged usur. CPLR 3211(e) states that where a defense of improper service is raised in an Answer, such defense " is waived if, having raised such an objection in a pleading, the objecting par does not mov ¬f for judgment on that groundwithn sixty days afer serving the pleading, unless the cour extends that time upon the ground of undue hardship. " Here , the Defendants have made See, e. no such motion and thus, any claim of improper service has been waived by them. v. HIP Hosp. Inc , 258 A. 2d 555 (2 DeSena Dept. 1999). Similarly, as Plaintiff is a federally charered baning institution (Complaint, paragraph" 1 "), the usur defense on the calculation of interest must [* 4] similarly fail. The National Ban Act (12 U. C. Because sumar judgment , if granted , 85) bars state law claims for usur. deprives a litigant of a trial , such motions should be strictly scrutinized by the Cour to determine if material triable issues of fact exist and if the movant has met its burden. If the movant fails to prove that there are no trable issues of fact , the Cour should deny the motion and need not address the insuffciency of the responding papers. The burden lies with the movant to prove entitlement to sumar judgment Vitiello v. Mayrch Const. Corp. , 255 A.D. 2d 182 (1 st Dept. 1998). Here , the movant has failed to prove that there are no trable issues of fact against Defendant KUGELMA. No documentation is attached to show that NEIL KUGELMAN was a signatory or cardmember under the Open Line Card Agreement. Whle a Cardmember Agreement is attched to the moving papers , there is nothng to show that NEIL KUGELMAN was a cardmember prior to June 2011 (durng which the charges sued for herein were incured). Based upon the papers submitted , this Cour canot fInd that NEIL KUGELMAN was a cardmember obligated to perform under the terms of the Agreement(s) in existence at the time the charges sought to be repaid were incured. Whether NEIL KUGELMAN' s name was on the statements to ensure his receipt ofthem or as a second cardmember is a triable issue of fact. See CPLR 3212(f). Notwthstading the foregoing, Plaintiff is entitled to sumar judgment against Defendant GOLDSPEED. COM , INC. Defendant KUGELMAN has stated that " GOLDSPEED was the sole user of the account and paid from its account (Kugelman affIrmation, paragraph " over one half milion ). Regardless of dollars to the Plaintiff" whether or not ths corporation has ceased doing business , no trable issue of fact exists as to this Defendant's liabilty. Therefore , the Cour has considered the Complaint, the Answer, the Affdavit of Facts , and [* 5] the papers submitted both in support and in opposition to this motion, and fInds that the Plaitiff is entitled to (1 sumar judgment for the relief requested in the Complaint against Defendant GOLDSPEED. COM, INC. and to dismiss the thee affIrmative defenses raised by Defendant KUGELMAN , but (2) that Plaintiff has failed to made a showing for the relief requested prima facie in its Complaint at ths time against Defendant KUGELMAN. Accordingly, afer due deliberation , it is ORDERED , that the Plaintiff s motion for sumar judgment on its First , Second and Third Causes of Action agaist Defendant NEIL KUGELMA a/a NEIL C. the thee afrmative defenses contained in the Defendant' except that denied KUGELMAN is s Answer are dismissed against Defendant KUGELMAN; and it is fuher ORDERED , that the motion by the Plaintiff, AMERICAN E)(RESS BANK , FSB , for an Order pursuant to CPLR 3212 as against the Defendant GOLDSPEED. COM , INC. on its Four Fift and Sixth the principal sum of Causes of Action is $50,316. granted, and the Cour hereby awards the Plaintiff judgment in with interest to be calculated from April 5, 2011 (C. L.R. 5001(b)), together with costs and disbursements as taxed by the Clerk of the Cour; and it is fuer ORDERED , that the Clerk of the Cour shall enter a Judgment in favor of the Plaintiff AMERICAN E)(RESS BANK , FSB , and against Defendant GOLDSPEED. COM , INC. in accordance herewith; and it is fuher ORDERED , that counsel for the Plaintiff and counsel for the Defendant KUGELMA shall appear in the DCM Par of ths Cour at 100 Supreme 2012 at 9:30 a. m. for a preliminar Cour Drive , Mineola, New York on June 6 conference. To the extent not granted herein , any other request for relief in the motion papers is denied. [* 6] The foregoing shall constitute the Decision and Order of ths Cour. Dated: Mineola, New York May 4 2012 ENTER: Copies mailed to: Jaffe & Asher , LLP Attorneys for Plaintiff Lewisohn & Lewisohn , Esqs. Attorneys for Defendants ENTERED MAY 0 7 2012 NA8S'U COUNTY 08TY Cll.' S OFFICE

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