Discover Bank v Khan

[*1] Discover Bank v Khan 2015 NY Slip Op 51325(U) Decided on September 14, 2015 Civil Court Of The City Of New York, Queens County Golia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2015
Civil Court of the City of New York, Queens County

Discover Bank, Plaintiff, Recitation as required by CPLR 2219(a) of the papers considered in the review of this Motion

against

Eakub Ali Khan, Defendant.



40890/09



Attorney for Plaintiff: Selip & Stylianou, LLP

Attorney for Defendant: Law Office of Hector M. Roman, P.C.
Donna-Marie Golia, J.

Plaintiff Discover Bank moves pursuant to Civil Practice Law and Rules ("CPLR") 3212 for summary judgment against the defendant on its breach of contract and account stated causes of action. The defendant's sole argument in opposition is that since the affidavit in support of the plaintiff's motion is sworn to by an employee of a subsidiary corporation rather than the plaintiff itself, the affidavit is insufficient to admit the annexed documents under the business records exception. Upon the papers submitted, the plaintiff's motion for summary judgment is granted, as explained more fully below.

Summary judgment pursuant to CPLR 3212 provides a mechanism for the prompt disposition, prior to trial, of civil actions which can be decided as a matter of law (see generally Brill v City of New York, 2 NY3d 648, 650 [2004]). Since summary judgment deprives the non-moving party of its day in court and has res judicata effects, it is therefore only appropriate "if no genuine, triable issue of fact is presented" (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). On a motion [*2]for summary judgment, the moving party must make out its prima facie case by submitting evidence in admissible form which establishes each element of its cause of action (see Marshall v Arias, 12 AD3d 423, 424 [2d Dept 2004]). Upon such a showing, the burden shifts to the non-moving party to present admissible evidence which demonstrates the necessity of a trial as to an issue of fact (see Zolin v Roslyn Synagogue, 154 AD2d 369, 369 [2d Dept 1989]). The non-moving party must be afforded every favorable inference that can be drawn from the evidentiary facts established (see McArdly v M & M Farms, 90 AD2d 538 [2d Dept 1982]). However, conclusory, unsupported allegations or general denials are insufficient to defeat a motion for summary judgment (see William Iselin & Co., Inc. v Landau, 71 NY2d 420, 427 [1988]; Stern v Stern, 87 AD2d 887, 887 [2d Dept 1982]).

Annexed to the plaintiff's motion are a copy of the original credit card application signed by the defendant, a copy of the cardmember agreement governing the defendant's account, as well as billing statements from August 18, 2007 to December 18, 2008. In his responsive papers, the defendant argues that since the affidavit in support of the plaintiff's motion is sworn to by an employee of a subsidiary corporation rather than the plaintiff itself, the affidavit cannot lay a foundation for the admissibility of the annexed documents under the business records exception to the hearsay exclusion. However, it is well-settled that documents may be introduced into evidence under the business records exception based upon foundational testimony laid by an employee of an entity other than the entity that produced the records "if the recipient can establish personal knowledge of the maker's business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon the recipient in its business" (State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 [3d Dept 2012], lv denied 20 NY3d 858 [2013]; see also Corsi v Town of Bedford, 58 AD3d 225, 230 [2d Dept 2008] [affidavit of town official introduced photographs taken by contract photographers]; Portfolio Recovery Assoc., LLC v Lall, 127 AD3d 576 [1st Dept 2015] [affidavit of employee of assignee introduced business records of primary lender/assignor]; Merrill Lynch Bus. Fin. Services, Inc. v Trataros Const., Inc., 30 AD3d 336, 337 [1st Dept 2006] [affidavit of employee of sister company]). To admit the business records of another entity, the documents must carry the indicia of reliability ordinarily associated with business records (see People v Cratsley, 86 NY2d 81, 91 [1995]; Corsi v Town of Bedford, supra at 232).

In support of its motion, the plaintiff submits the affidavit of Franklin Akers, a Litigation Support Specialist for Discover Products, Inc. That affidavit establishes that Discover Products, Inc. is a servicing affiliate of the plaintiff, exists for the sole purpose of collecting debts owed to the plaintiff, has access to all of the plaintiff's records relating to delinquent accounts, and does not collect any debts other than those owed to the plaintiff. Mr. Akers attests in his affidavit that he is familiar with how cardmember records are made and kept, that the application, cardmember agreement, and credit card statements annexed to the plaintiff's motion are business records of the plaintiff, were created in the regular course of business, contemporaneously with the transactions reflected therein, and relied upon by plaintiff in the regular course of business. Moreover, since Discover Products acts as the exclusive debt collection agent for the plaintiff, Discover Bank was under a business duty to transmit its records accurately to its subsidiary, "thus establishing the "routineness" that "tends to guarantee truthfulness because of the absence of motivation to falsify" those documents (Corsi, supra at 231 [quoting Ed Guth Realty v Gingold, 34 NY2d 440, 451 (1974)]; cf. Hochhauser v Electric Ins. Co., 46 AD3d 174, 182 [2d Dept 2007] [insured's statements to insurer not admissible under business records exception, where insured was not under a business [*3]duty to communicate accurately and truthfully]). Thus, the reliance of Discover Products, Inc. on the records prepared by the plaintiff is sufficient to lay a proper business records foundation for their admissibility; the "fact that the record was provided by a third party is [] of no consequence" (Corsi, supra at 232).

Since the affidavit is sufficient to admit the annexed documents under the business records exception to the hearsay rule, the Court turns to the question of whether the documents sufficiently establish the plaintiff's prima facie entitlement to judgment as a matter of law. Mr. Akers attests that the statements were mailed to the defendant who accepted them without objection, used the card over the period of time in question, and made partial payment thereon. Taken together, the affidavit and documentary evidence show that as of December 18, 2008, there was an unpaid balance of $10,695.86 on the defendant's account, and establish the plaintiff's prima facie entitlement to summary judgment on both its breach of contract and account stated claims (see Target Nat'l. Bank v Marzullo, 10 Misc 3d 145(A) [App Term 9th & 10th Jud. Dists. 2006]).

The plaintiff having established its entitlement to judgment as a matter of law, the burden shifts to the defendant to set forth a triable issue of fact. The defendant has failed to meet this burden, offering in opposition only legal argument with regard to the admissibility of the documents themselves. Accordingly, since the plaintiff has established its prima facie case, and the defendant has failed to demonstrate a triable issue of fact, the plaintiff's motion for summary judgment is granted. The clerk of the court is directed to enter judgment in favor of the plaintiff in the amount of $10,695.86 plus statutory interest, costs, and disbursements from April 3, 2009.

This is the decision and order of the Court.

Dated: September 14, 2015
________________________

Donna-Marie Golia, JCC