First Natl. Bank of Omaha v Smith

[*1] First Natl. Bank of Omaha v Smith 2018 NY Slip Op 51267(U) Decided on September 6, 2018 Civil Court Of The City Of New York, Richmond County Grey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2018
Civil Court of the City of New York, Richmond County

First National Bank of Omaha, et al., Plaintiff,

against

Jennifer A. Smith and SHAWN SMITH, Defendants.



CV-5104-17/RI



(P) First National Bank of Omaha

Lacy Katzen LLP - The Granite Building, 130 East Main Street, Rochester, NY 14604, (585) 324-5775 ext:

(D) Jennifer A Smith

Gregory A. Flood - 900 SOUTH AVENUE-STE 300, Staten Island, NY 10314, (718) 568-3678 ext:

(D) Shawn Smith

Gregory A. Flood - 900 SOUTH AVENUE-STE 300, Staten Island, NY 10314, (718) 568-3678 ext:
Lisa Grey, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this Motion:

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Affirmation in Opposition to Motion 2

Reply Affidavit 3

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

First National Bank of Omaha (hereinafter, "Plaintiff") moves for an order granting summary judgment pursuant to CPLR § 3212 against Jennifer A. Smith and Shawn Smith (hereinafter, "Defendants"). Plaintiff seeks damages for breach of contract and to recover on an account stated. The parties appeared before the Court on July 9, 2018, with both sides represented by counsel, and decision was reserved.

The Court finds that Plaintiff has failed to establish its prima facie case on its cause of action for breach of contract. However, since an account stated is independent of the original obligation (see Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731 [App Div 2d Dept 2011]), the Court finds that Plaintiff established its second cause of action as an account stated.

In the context of consumer credit actions, a prima facie case for breach of contract can be established by submitting sufficient evidence of a credit card agreement, which the defendant accepted by using the credit card and making payments thereon, and that the agreement was breached by the defendant when he or she failed to make required payments (Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 523 [App Term 2d Dept 2012]). The issuance of a credit card constitutes an offer of credit, and the use of the card constitutes acceptance of the offer (Citibank [S.D.], N.A. v Keskin, 121 AD3d 635, 636 [App Div 2d Dept 2014], citing Feder v Fortunoff, Inc., 494 NYS2d 42 [App Div 2d Dept 1985]). In this case, however, Plaintiff's failure to provide the credit card agreement in its moving papers leaves triable issues of fact as to whether a contract actually existed.

Plaintiff also moves for summary judgment under the theory of an account stated. An account stated is "an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due" (Cach, LLC v Aspir, 137 AD3d 1065, 1066 [App Div 2d Dept], quoting Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [App Div 3d Dept 1993]). A plaintiff must show that the defendant received the plaintiff's account statements for payment and retained these statements for a reasonable period of time without objection" (id., citing Castle Oil Corp. v Bokhari, 52 AD3d 762 [App Div 2d Dept 2008]).

Plaintiff has demonstrated, with evidence in admissible form, that it generated statements and mailed them to Defendant in the regular course of business, which Defendant accepted and retained without objection for a reasonable time prior to the commencement of this action. In [*2]support of its motion for summary judgment, Plaintiff submitted the affidavit of Daniel Dunn, identified as a Recovery Representative of Plaintiff. Mr. Dunn affirms that account statements were generated during the regular course of business and sent to Defendants. Plaintiff submitted a copy of the account statements from November 2015 through June 2017, which showed Defendants' last payment was in November 2016. The aforementioned statements detail activity on the account including purchases, charges, and payments made. The June 2017 statement shows an outstanding balance of $8,411.57.

A motion for summary judgment should be granted if "upon all the papers and proofs submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties." (CPLR 3212). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 AD3d 111, 125 [App Div 2d Dept 2015], citing Millerton Agway Cooperative, Inc. v Briarcliff Farms, Inc., 17 NY2d 57 [Ct App 1966]). A party in opposition to a motion for summary judgment must present evidence sufficient to raise a triable issue of fact, although mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficien (Lau v Margaret E. Pescatore Parking, Inc., 30 NY3d 1025, 1027 [Ct App 2017], citing Zuckerman v New York, 49 NY2d 557, 562 [Ct App 1980]).

Defendants argue that a question of fact exists as to whether Plaintiff is entitled to the alleged debt or if the money would be owed to Visa, since the complaint states, "this action arises out of defendant applying for and receiving Plaintiff's Visa Credit Card." The Court finds this argument unpersuasive. Each billing statement directs Defendants to remit payment to "First Bankcard", and explicitly states that it is "Issued by First Bankcard, a division of First National Bank of Omaha".

Defendants also argue that, since the monthly billing statements did not include Defendant Shawn Smith as an addressee until "Statement Closing Date 9/9/16", a question of fact exists as to which defendant is the alleged cardholder. As Defendants' answer contained only broad defenses, without specificity, the Court has taken new documentary evidence attached to Plaintiff's reply into consideration (see Feliciano v New York City Health & Hosps. Corp., 62 AD3d 537 [App Div 1st Dept 2009]). According to the joint-cardholder request form (attached to Plaintiff's reply as "Exhibit B"), Defendant Jennifer Smith requested that Defendant Shawn Smith be added as a joint cardholder on the account. The request form was signed and dated by both Defendants, and states, "[a] joint cardholder receives a card in his or her name and has the same cardholder privileges as the primary cardholder. He or she will also share full responsibility and liability for the account".

The evidence shows that Defendants were on notice that they were both equally responsible and liable for the account, and that a balance of $5,389.41 existed at the time Defendant Shawn Smith was added. Defendants never objected to any of the account statements and, in fact, made payments on the account from November 2015 through November 2016.

Defendants have failed to contradict Plaintiff's documentary evidence or raise a triable issue of fact. Accordingly, Plaintiff's motion for summary judgment is granted in the amount of [*3]$8,411.57.

The foregoing constitutes the Decision and Order of the Court.

Dated: September 6, 2018

Staten Island, NY

HON. LISA GREY

Judge, Civil Court