Capital One Bank (USA), N.A. v Manjarrez

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[*1] Capital One Bank (USA), N.A. v Manjarrez 2018 NY Slip Op 51949(U) Decided on December 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2018
Civil Court of the City of New York, Bronx County

Capital One Bank (USA), N.A., Plaintiff(s),

against

Felix A. Manjarrez, Defendant(s).



12536/17



Attorney for Plaintiff: Rubin & Rothman, LLC

Defendant appeared pro se
Fidel E. Gomez, J.

In this action for breach of contract arising from pro se defendant's alleged failure to pay sums charged by him on a credit card, plaintiff moves for an order granting it summary judgment. Specifically, plaintiff contends that it is entitled to summary judgment because defendant breached the relevant agreement between the parties. Defendant opposes the instant motion asserting that because plaintiff has failed to produce a copy of the relevant agreement bearing his signature, plaintiff cannot prove that he is bound thereby. As such, defendant asserts that the instant motion be denied.

For the reasons that follow hereinafter plaintiff's motion is denied.

The complaint alleges that plaintiff issued defendant a credit card, that plaintiff agreed to make payments for goods and services charged and/or for cash advances made thereon, and that defendant failed to make payments for charges made using said card. Thus, plaintiff, presumably on a cause of action for breach of contract, seeks judgment in the amount $2,751.60, said sum representing charges on the foregoing card.

Plaintiff's motion for summary judgment is denied insofar as it fails to tender any admissible evidence with respect to its sole basis for summary judgment - that defendant bound itself to and breached the agreement between the parties. Thus, plaintiff fails to establish prima facie entitlement to summary judgment.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,[*2][t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case(Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).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]; 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 statement."]; 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 [*3]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]). Notably, bank and credit card account statements are self-authenticating, and require no foundation for admission in evidence (Portfolio Recovery Assoc., LLC at 576; Merrill Lynch Bus. Fin. Services, Inc. v Trataros Const., Inc., 30 AD3d 336, 337 [1st Dept 2006]; Elkaim v Elkaim, 176 AD2d 116, 117 [1st Dept 1991], appeal dismissed 78 NY2d 1072 [1991]; Capital One Bank (USA) v Koralik, 51 Misc 3d 74, 76 [App Term 2016]).

In support of its motion, plaintiff submits an affidavit by Ashley Vanderhall (Vanderhall), a Litigation Support Representative employed by plaintiff, who states the following: Upon review of plaintiff's records, and more specifically, the credit card account records for the account ending in 8284, she discerned that defendant applied for and received a credit card. Defendant used the card to obtain goods and/or cash advances. As a result of the foregoing usage, plaintiff generated monthly billing statements which itemized each and every transaction related to defendant's account. Vanderhall states that the agreement between the parties, appended to plaintiff's motion, required that defendant pay plaintiff for all amounts charged on the instant card. Vanderhall states, that the foregoing statements, appended to plaintiff's motion were made and kept in the ordinary course of plaintiff's business. Vanderhall alleges that plaintiff is owed $2,751.60, representing sums charged by defendant on the card.

Based on the foregoing, plaintiff fails to establish prima facie entitlement to summary judgment on the sole basis under which it moves - breach of contract. Significantly, the essential elements in an action for breach of contract "are the existence of a contract, the plaintiff's performance pursuant to the contract, and damages resulting from the breach" (Dee v Rakower, 112 AD3d 204, 209 [2d Dept 2013]; Elisa Dreier Reporting Corp. v Global Naps Network, Inc., 84 AD3d 122, 127 [2d Dept 2011]; Brualdi v IBERIA Lineas Aeraes de España, S.A., 79 AD3d 959, 960 [2d Dept 2010]; JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). Here, while plaintiff appends the relevant contract to its motion, to the extent that Vanderhall never lays a foundation for its admission, it cannot be considered by this court [FN1] . Indeed, the proponent of summary judgment must tender all evidence in admissible form (Alvarez at 324; Zuckerman at 562; Mondello at 638; Peskin at 634; Muniz v Bacchus at 388). Accordingly, in the absence of the contract and the terms to which it binds defendant, plaintiff fails to establish a breach thereof and thus, fails to establish prima facie entitlement to summary judgment.

Paradoxically, although plaintiff neither pleads nor seeks summary judgment on a cause of action for account stated, Vanderhall lays a business record foundation for the admission of the statements plaintiff created in relation to the card it issued to defendant. Thus, plaintiff submits admissible evidence relative to a cause of action it neither pleads or pursuant to which it moves. Even if the Court were inclined to consider awarding plaintiff relief pursuant to a cause [*4]of action for account stated, the proof tendered nevertheless falls short of the required mark. The proponent of summary judgment on a cause of action for account stated must prove that it generated account statements for the defendant in the regular course of business, that it mailed them 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; Am. Exp. Centurion Bank at 795). Here, Vanderhall never states that the statements at issue were mailed to defendant and that defendant failed to object to them. Thus, substantively, the record is bereft of proof warranting judgment on a cause of action for account stated.

Because plaintiff fails establish prima facie entitlement to summary judgment, the Court need not consider the sufficiency of any papers submitted in opposition to this motion (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]).



It is hereby

ORDERED that all parties appear for a trial on January 25, 2019 at 9:30AM in Part 11C, Room 504. It is further

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

This constitutes this Court's decision and Order.



Dated : December 21, 2018

Bronx, New York

_____________________________Fidel E. Gomez, JCC

Footnotes

Footnote 1: The contract at issue would be admissible as a business record. Such 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.