| Citibank (S.D.) N.A. v Cutler |
| 2013 NY Slip Op 08042 [112 AD3d 573] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Citibank (S.D.) N.A., Respondent, v Dean K.Cutler, 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 defendantappeals from a judgment of the Supreme Court, Westchester County (Tolbert, J.), datedSeptember 10, 2012, which, upon an order of the same court entered August 10, 2012,granting the plaintiff's motion for summary judgment on the complaint, is in favor of theplaintiff and against him in the principal sum of $49,137.28.
Ordered that the judgment is affirmed, with costs.
An account stated is an agreement, express or implied, between the parties to anaccount based upon prior transactions between them with respect to the correctness ofaccount items and a specific balance due on them (see White Plains Cleaning Servs., Inc. v 901 Props., LLC, 94AD3d 1108, 1109 [2012]; Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216, 223[2011]; American ExpressCenturion Bank v Cutler, 81 AD3d 761, 762 [2011]). An account stated isindependent of the original obligation (see Citibank [S.D.], N.A. v Macarle, 11 Misc 3d 128[A],2006 NY Slip Op 50241[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2006]). "Anagreement may be implied where a defendant retains bills without objecting to themwithin a reasonable period of time, or makes partial payment on the account"(American Express Centurion Bank v Cutler, 81 AD3d at 762). Here, in supportof its motion for summary judgment the plaintiff submitted monthly billing statementsfrom January 2007 through March 2008, and an affidavit from a document controlofficer who averred that the billing statements were sent to the defendant at his homeaddress, that the defendant accepted and retained those statements without objection, andthat he made partial payments on the account until on or about December 2007 whenpayments ceased. This evidence was sufficient to establish the plaintiff's entitlement tojudgment as a matter of law on the cause of action for an account stated (see American Express CenturionBank v Gabay, 94 AD3d 795 [2012]). In opposition, the defendant failed toraise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]).
The defendant's remaining contentions either are without merit or have beenrendered academic in light of our determination.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the complaint. Dillon, J.P., Angiolillo, Roman and Sgroi, JJ., concur.