| Citibank (S.D.) N.A. v Sablic |
| 2008 NY Slip Op 07852 [55 AD3d 651] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Citibank (South Dakota) N.A., Respondent, v Zvonimir Sablic,Appellant. |
—[*1] Rubin & Rothman, LLC, Islandia, N.Y. (Annette T. Altman of counsel), for respondent.
In an action to recover damages for breach of contract and on an account stated, the defendantappeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County(Harkavy, J.), dated March 28, 2007, as granted those branches of the plaintiff's motion which werefor summary judgment on the cause of action to recover damages for breach of contract and to dismisshis counterclaim.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Citibank (South Dakota) N.A. (hereinafter Citibank) commenced this action torecover damages for breach of contract and on an account stated against the defendant Zvonimir Sablic(hereinafter Sablic) to recover an unpaid credit card balance in the amount of $33,724.84. In hisanswer, Sablic asserted one affirmative defense based on the allegation that he had enrolled in a creditprotector program that excused his payment, and one counterclaim based on the allegation thatCitibank had harassed him.
Contrary to Sablic's contention, the Supreme Court properly granted that branch of Citibank'smotion which was for summary judgment on the cause of action to recover damages for breach ofcontract. Citibank made a prima facie showing of entitlement to judgment as a matter of law bytendering sufficient evidence that Sablic breached his agreement to pay the credit card debt, and hefailed to produce any evidence in admissible form sufficient to establish the existence of a [*2]triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]). Sablic's unilateral belief and expectation that the credit protector program absolvedhim of the debt did not create an issue of fact, especially since there is evidence in the record thatCitibank cancelled his enrollment on July 9, 2003 (see Wells v Shearson Lehman/AmericanExpress, 72 NY2d 11, 24 [1988]). Under similar circumstances, the courts have granted summaryjudgment in favor of the bank (see Citibank v Roberts, 304 AD2d 901 [2003]; MBNAAm. Bank v Paradise, 285 AD2d 586 [2001]; First Deposit Natl. Bank v Van Allen, 277AD2d 858 [2000]; Greenwood Trust Co. v Houk, 277 AD2d 761 [2000]; ProvidianNatl. Bank v Forrester, 277 AD2d 582 [2000]).
The Supreme Court properly dismissed Sablic's counterclaim because the Debt CollectionProcedures Act set forth in article 29-H of the New York State General Business Law does not createa private right of action (see Varela v Investors Ins. Holding Corp., 81 NY2d 958, 961[1993]; Lane v Marine Midland Bank, 112 Misc 2d 200, 201 [1982]) and Citibank is not adebt collector within the meaning of the Fair Debt Collection Practices Act (15 USC § 1692et seq.) (see Doherty v Citibank [South Dakota] N.A., 375 F Supp 2d 158, 161-162[2005]; Monogram Credit Card Bank of Ga. v Mata, 195 Misc 2d 96 [2002]). Skelos, J.P.,Fisher, Dickerson and Belen, JJ., concur.