[*1]Decided on February 9, 2006


PRESENT: : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ
2005-740 S C.

Appeal from an order of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered February 17, 2005. The order granted plaintiff's motion for summary judgment.

Order unanimously modified by denying plaintiff's motion for summary judgment on its first and second causes of action, and by striking the provision awarding plaintiff attorney's fees; as so modified, affirmed without costs.

In this action for breach of a credit card agreement and an account stated, plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on its first cause of action alleging a breach of contract and its second cause of action for attorney's fees. However, since an account stated is independent of the original obligation (see Werner v Nelkin, 206 AD2d 422 [1994]), we find that plaintiff established its third cause of action (see Citibank [S.D.] v Jones, 272 AD2d 815 [2000]). The defendant's receipt and retention of a plaintiff's account without objection within a reasonable period of time entitles the plaintiff to summary judgment on the account. An action for an account stated is not an action by the card issuer to enforce liability for use of the credit card and it is unnecessary for plaintiff to set forth the subject matter of the original debt to establish its cause of action for an account stated (see Schutz v Morette 146 NY 137, 141 [1895]). However, there is no basis to award plaintiff attorney's fees on the cause of action for an account stated (see Chase Manhattan Bank [Nat. Assn.], Bank Americard Div. v Hobbs, 94 Misc 2d 780 [Civ Ct, Kings County 1978]).
Decision Date: February 09, 2006