Calvary SPV I, LLC v Awumey

[*1] Calvary SPV I, LLC v Awumey 2018 NY Slip Op 50668(U) Decided on March 12, 2018 Civil Court Of The City Of New York, Bronx County Gomez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2018
Civil Court of the City of New York, Bronx County

Calvary SPV I, LLC, Plaintiff(s),

against

Alice Awumey, Defendant(s).



13627/17



Attorney for plaintiff: Mullooly, Jeffrey, Rooney & Flynn, LLP

Pro se defendant: Alice Awumey
Fidel E. Gomez, J.

The instant action is for breach of contract and account stated. The complaint alleges that plaintiff, a debt collection agency, acquired - by assignment - a debt owed by defendant to nonparty GE Retail Bank/PC Richard (GE) pursuant to an agreement between defendant and GE. Defendant defaulted under the agreement and now owes plaintiff $2,302.21.

On March 9, 2018, this case was tried. Plaintiff appeared by counsel while defendant was pro se[FN1] .

In its case in-chief, plaintiff elicited testimony from Hilda Veloz (Veloz), plaintiff's employee and custodian of records. While she testified that she had no personal knowledge about the transactions listed in the records proffered at trial, Veloz did testify that the records proffered by plaintiff were created and kept in the ordinary course of plaintiff's business and that it was plaintiff's business to create and maintain them. Significantly, Veloz identified, described, and discussed an affidavit by Kenneth Hughes (Hughes) (Exhibit 1 in Evidence), a bill of sale (Exhibit 2 in Evidence), a credit card agreement (Exhibit 3 in Evidence), statements (Exhibit 4 in Evidence), and a collection letter (Exhibit 5 in Evidence). A review of the records which were admitted in evidence[FN2] despite defendant's objection, indicates the following: As per Hughes' [*2]affidavit (Exhibit 1), an employee of Synchrony Bank, formerly GE, defendant and GE entered into a credit agreement, whereby defendant was issued a credit card. Per the agreement, defendant was to pay GE for all goods and services obtained with the credit card. Hughes incorporates by reference, the foregoing agreement, and a statement indicating the amounts then due to GE as of January 24, 2014. Hughes states that on February 19, 2014, GE sold/assigned the credit agreement and account to defendant. A review of the agreement appended to Hughes' affidavit indicates that defendant was bound to the agreement when she used the credit card issued to her, that she was to repay any amounts incurred by her under the credit card, and that interest would be charged for any balances not paid in full. The statement appended to Hughes' affidavit indicates that as of January 24, 2014, defendant owed $2,302.21 to GE for purchases made on the credit card herein. Notably, the statement list defendant's address as 2390 Tiebout Avenue, Apt 6D, Bronx, NY 10458.

The bill of sale (Exhibit 2) indicates that on February 19, 2014, GE sold/assigned the agreement between defendant and GE to plaintiff. The statements (Exhibit 4), of which there are several and which bear defendant's address, indicate that beginning December 4, 2011, defendant made purchases on the foregoing credit card statements. The final statement dated January 24, 2014 lists a balance of $2,302.21.

Defendant, in her case in-chief, testified that although she has resided at the address listed on the statements proffered by plaintiff for over 10 years, she never applied for a credit card from GE, never received said card, never made any charges on said card, and never received any statements or correspondence regarding the card. She first learned of this action when she was served with the summons and complaint. Despite being served with the summons and complaint, she never notified the police regarding possible identity theft regarding this action; choosing to address the issue in court instead.

Based on the foregoing, the Court credits defendant's testimony and finds that she never applied, received, or used the credit card at issue. The Court also finds that she never received any notice of the instant credit card prior to being served with the summons and complaint, which would include the statements.

It is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility [*3]issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" (People v McCoy, 100 AD3d 1422, 1422 [4th Dept 2012]). Indeed, when findings of fact rest in large measure on considerations related to the credibility of witnesses, a trial court's determination on this issue is accorded great deference (Ning Xiang Liu v Al Ming Chen, 133 AD3d 644, 644 [2d Dept 2015]). Absent conclusions that cannot be supported by any fair interpretation of the evidence, a judgment rendered after a bench trial should not be disturbed (Saperstein v Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]).

In an action to recover amounts due and owing as a result of the failure to pay a credit card debt, a plaintiff can establish entitlement to judgment in two ways. First, a plaintiff establishes entitlement to judgment for breach of the relevant credit card agreement

by tendering sufficient 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. Dakota), N.A. v Keskin, 121 AD3d 635, 636 [2d Dept 2014]; Citibank (S. Dakota), N.A. v Brown-Serulovic, 97 AD3d 522, 524 [2d Dept 2012]; Citibank (S. Dakota) N.A. v Sablic, 55 AD3d 651, 652 [2d Dept 2008]). Second, a plaintiff establishes entitlement to judgment when it establishes an account stated (Keskin at 636; Brown-Serulovic at 523). An account stated is an agreement with respect to the correctness of the account items and balance due between parties to an account based upon prior transactions between them (Keskin at 636; Brown-Serulovic at 523). Significantly, an agreement may be implied where a defendant retains bills sent to him without objecting to them within a reasonable period of time, or when the defendant makes partial payment on the account (Keskin at 636; Brown-Serulovic at 523). Thus, a plaintiff establishes entitlement to judgment on a cause of action to recover on an account stated by

tendering sufficient evidence that it generated account statements for the defendant in the regular course of business, that it mailed those statements to the defendant on a monthly basis, and that the defendant accepted and retained these statements for a reasonable period of time without objection, and made partial payments thereon

(Keskin at 636; see also Am. Exp. Centurion Bank v Gabay, 94 AD3d 795, 795 [2d Dept 2012]).

Here, while plaintiff, in its case in chief established all elements of its causes of action for breach of contract and account stated, it utterly failed to establish that the person to whom the instant credit card was issued and to whom statements were sent was in fact the defendant. Notably, when Veloz was asked whether she had any personal knowledge about the contents of the records proffered in evidence at trial, she answered that she did not. Thus, Veloz could not say that it was the defendant standing before her and the Court who was the party to the instant agreement, to whom the credit card was issued, who used the credit card, and who actually received statements were sent. At best, because the address on the statement and defendant's address are one in the same, Veloz' testimony and the documents in evidence merely established that the debt at issue was issued to someone purporting to be defendant and purporting to reside at defendant's address.

In light of the foregoing, and given defendant's unequivocal testimony that she had nothing to do with the instant debt nor ever received notice of the same, this Court finds that defendant is not liable for the debt alleged. Stated differently, defendant was not a party to the relevant agreement and thus could not have breached it and defendant never received statements memorializing the debt so as to have acquiesced to the sums due. It is hereby

ORDERED that this action be dismissed with prejudice. It is further

ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty days (30) hereof.

This constitutes this Court's decision and Order.

Dated: March 12, 2018

Hon. Fidel E. Gomez, JCC Footnotes

Footnote 1: It bears noting that while defendant appeared without counsel, beyond explaining her basic rights - the right to testify, question witnesses, proffer documentary evidence and interpose objections, the Court provided her no additional aid. While courts will generally accord "pro se litigants some leeway in the presentation of their case, pro se litigants must still abide by court procedures and calendars" (Stoves & Stones, Ltd. v Rubens, 237 AD2d 280, 280 [2d Dept 1997]). This, of course, is because it is well settled that "[a] litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants" (Roundtree v Singh, 143 AD2d 995, 996 [2d Dept 1998]). Accordingly, this Court did not accord pro se defendant any special treatment and held her to the same standards of practice that it held plaintiff's lawyer.

Footnote 2: Plaintiff, via Veloz' testimony laid a foundation for the admission of all exhibits as plaintiff's business records. Indeed, records can generally be admitted for consideration at trial or on a motion upon a proper foundation that the same are business records - namely, that (1) the record be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Here, the foregoing foundation was laid and the objection asserted by defendant for the record's exclusion had no basis in law. As such the records were admitted even though with the exception of the bill of sale (Exhibit 2) and the collection letter (Exhibit 5), all records were third-party records of GE. Such records, therefore, are not generally admissible (Carothers v GEICO Indem. Co., 79 AD3d 864, 864-865 [2d Dept 2010], overruled on other grounds Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2d Dept 2013], affd, 25 NY3d 498 [2015]. To be sure, "the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records" (Std. Textile Co., Inc. v Natl. Equip. Rental, Ltd., 80 AD2d 911, 911 [2d Dept 1981]). Accordingly, the records of a third-party are not the admissible business records of another party unless such third-party's records were used in the preparation of the proponent's business records such that they are fully incorporated into the proponent's business records (Andrew Carothers, M.D., P.C. at 864—65; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [2d Dept 1986]; see also People v DiSalvo, 284 AD2d 547, 548 [2d Dept 2001]). Here, of course, Veloz' testimony was bereft of any evidence that GE's records (Exhibits 1, 3, and 4, the affidavit, the agreement, and the statements, respectively) were used by plaintiff in the preparation of its own business records. Notwithstanding the foregoing, Exhibit 4, the statements, would nevertheless be independently admissible insofar as they are self-authenticating (Portfolio Recovery Assoc., LLC v Lall, 127 AD3d 576, 576 [1st Dept 2015] ["Plaintiff's proof of the underlying debt obligation was shown through defendant's testimony that he used the credit card issued by plaintiff's assignor and by the self-authenticating account statements."]; Capital One Bank (USA) v Koralik, 51 Misc 3d 74, 76 [App Term 2016] ["The statements of defendant's credit card account, which referenced, inter alia, defendant's name, address, account number, any transaction for the relevant period, the balance owed and the payments received, were self-authenticating."]).