| Citibank (S.D.), N.A. v Brown-Serulovic |
| 2012 NY Slip Op 05381 [97 AD3d 522] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Citibank (South Dakota), N.A., Respondent, v RachelBrown-Serulovic, Appellant. |
—[*1] Rubin & Rothman, LLC, Islandia, N.Y. (Eric S. Pillischer of counsel), forrespondent.
In an action to recover the outstanding balance due on a credit card, the defendant appealsfrom an order of the Supreme Court, Rockland County (Alfieri, J.), entered May 31, 2011, whichgranted the plaintiff's motion for summary judgment on the complaint.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the complaint is denied.
In this action to recover the outstanding balance of $24,493.62 due on a credit card, theplaintiff alleged causes of action to recover damages for breach of contract and to recover on anaccount stated. The plaintiff moved for summary judgment on the complaint. The Supreme Courtgranted the motion, the defendant appeals, and we reverse.
" 'An account stated is an agreement between parties to an account based upon priortransactions between them with respect to the correctness of the account items and balance due' "(Fleetwood Agency, Inc. v Verde Elec.Corp., 85 AD3d 850, 851 [2011], quoting Jim-Mar Corp. v Aquatic Constr., 195AD2d 868, 869 [1993]; see AmericanExpress Centurion Bank v Cutler, 81 AD3d 761, 762 [2011]). "An agreement may beimplied where a defendant retains bills without objecting to them within a reasonable period oftime, or makes partial payment on the account" (American Express Centurion Bank vCutler, 81 AD3d at 762; see Landauv Weissman, 78 AD3d 661, 662 [2010]).
Here, the plaintiff failed to make a prima facie showing of its entitlement to judgment as amatter of law on the cause of action to recover on an account stated. The plaintiff did not submitsufficient evidence to establish that the defendant retained the account statements withoutobjecting to them within a reasonable period of time. While an employee who reviewed theplaintiff's records stated by affidavit that the credit card statements were mailed to the defendanton a monthly basis, she failed to aver that the defendant retained these statements for areasonable period of time without objecting to them (see American Express Centurion Bank vCutler, 81 AD3d at 762). The plaintiff also submitted three checks as evidence of partialpayments on the account statements. Two of these checks, however, were for payment of the fullamount owed on the account at the time and predated the disputed charges. The third check, inthe sum of $300, only reflected a small proportion of the debt owed at the time, approximately$19,000, and by itself, did not create an inference of assent (see [*2]Landau v Weissman, 78 AD3d at 662; Construction & Mar.Equip. Co. v Crimmins Contr. Co., 195 AD2d 535 [1993]). Accordingly, the plaintiff failedto establish its entitlement to judgment as a matter of law on its cause of action to recover on anaccount stated (see Raytone PlumbingSpecialities, Inc. v Sano Constr. Corp., 92 AD3d 855, 856 [2012]; AmericanExpress Centurion Bank v Cutler, 81 AD3d at 762; Citibank [SD] N.A. v Goldberg, 24 Misc 3d 143[A], 2009 NY SlipOp 51735[U] [2009]).
The plaintiff made a prima facie showing of entitlement to judgment as matter of law on itscause of action to recover damages for breach of contract (see Citibank [S.D.] N.A. v Sablic, 55 AD3d 651, 652 [2008]). Theplaintiff tendered sufficient evidence that there was an agreement, which the defendant acceptedby her use of the credit card and payments made thereon, and which was breached by thedefendant when she failed to make required payments (id.; see Feder v Fortunoff,Inc., 114 AD2d 399 [1985]; FIA Card Servs., N.A. v DiLorenzo, 22 Misc 3d1127[A], 2009 NY Slip Op 50305[U] [2009]). However, the defendant, in opposition, tenderedevidence that she objected to charges with the plaintiff, inaccuracies allegedly resulted from thedefendant being mistaken for a similarly named individual, and that the defendant raised thealleged inaccuracies with the credit reporting agencies. Therefore, the defendant raised a triableissue of fact on the cause of action to recover damages for breach of contract (see Zuckermanv City of New York, 49 NY2d 557, 562 [1980]).
Accordingly, the plaintiff's motion for summary judgment on the complaint should have beendenied. Rivera, J.P., Eng, Lott and Cohen, JJ., concur.