| Palisades Collection, LLC v Kedik |
| 2009 NY Slip Op 08259 [67 AD3d 1329] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| Palisades Collection, LLC, Appellant, v Barbara Kedik,Respondent. |
—[*1] Scaccia Law Firm, Syracuse (Dante M. Scaccia of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.),entered September 30, 2008 in an action for breach of contract and account stated. The orderdenied plaintiff's motion for partial summary judgment and granted defendant summaryjudgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, as the alleged assignee of Discover Bank (Discover), commencedthis action for breach of contract and account stated seeking to recover the balance owed on acredit card issued to defendant. Supreme Court denied in part plaintiff's motion for partialsummary judgment dismissing seven of the affirmative defenses, reserved decision in part, andordered plaintiff to provide evidence that it had standing. Following plaintiff's furthersubmissions, the court concluded that plaintiff failed to provide admissible evidence of itsstanding and sua sponte granted defendant summary judgment dismissing the complaint. Weaffirm.
To establish standing to sue, plaintiff was required to submit admissible evidence thatDiscover assigned its interest in defendant's debt to plaintiff (see generally Rockland LeaseFunding Corp. v Waste Mgt. of N.Y., 245 AD2d 779 [1997]). Here, plaintiff submitted anaffidavit from its agent with exhibits, including a printed copy of several pages from anelectronic spreadsheet listing defendant's Discover account as one of the accounts sold toplaintiff. Contrary to the contention of plaintiff, the court properly determined that it failed toestablish a proper foundation for the admission of the spreadsheet under the business recordexception to the hearsay rule (see generally Speirs v Not Fade Away Tie Dye Co., 236AD2d 531 [1997]).
A business record is admissible if "it was made in the regular course of any business and. . . it was the regular course of such business to make it, at the time of the act,transaction, occurrence or event, or within a reasonable time thereafter" (CPLR 4518 [a]; seegenerally People v Kennedy, 68 NY2d 569, 579-580 [1986]). "A proper foundation for theadmission of a [*2]business record must be provided by someonewith personal knowledge of the maker's business practices and procedures" (West Val. FireDist. No. 1 v Village of Springville, 294 AD2d 949, 950 [2002]). Although plaintiff's agentaverred that the spreadsheet was kept in the regular course of business and that the entriestherein were made in the regular course of business, the agent did not establish that he wasfamiliar with plaintiff's business practices or procedures, and he further failed to establish when,how, or by whom the electronic spreadsheet submitted in paper form was made (seeCPLR 4518 [a]; West Val. Fire Dist. No. 1, 294 AD2d at 950). Furthermore, although anelectronic record "shall be admissible in a tangible exhibit that is a true and accuraterepresentation of such electronic record" (CPLR 4518 [a]), plaintiff's agent failed to establishthat the printed electronic spreadsheet submitted to the court was a true and accuraterepresentation of the electronic record kept by plaintiff. Present—Smith, J.P., Centra,Fahey, Carni and Pine, JJ.