| Citibank (South Dakota), N.A. v Abraham |
| 2016 NY Slip Op 03133 [138 AD3d 1053] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| Citibank (South Dakota), N.A.,Respondent, v Chiantilung Abraham, Appellant. |
Gunilla Perez-Faringer, White Plains, NY, for appellant.
Selip & Stylianou, LLP, Woodbury, NY (Carol Anne Van Houten of counsel),for respondent.
In an action to recover damages for breach of contract and on an account stated, thedefendant appeals from an order of the Supreme Court, Richmond County (Dollard, J.),dated May 2, 2014, which granted the plaintiff's motion for summary judgment on thecomplaint in the principal sum of $26,985.85.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the complaint is denied.
The plaintiff, Citibank (South Dakota), N.A. (hereinafter Citibank), a credit cardissuer, commenced this action to recover an amount allegedly owed by the defendant, acredit card holder, asserting causes of action to recover damages for breach of contractand on an account stated. Citibank moved for summary judgment on both causes ofaction. In support of its motion, Citibank submitted an affidavit of an employee who hadexamined its records of the defendant's account, and it also submitted numerous monthlystatements of the account, covering the period between February 7, 2008, and October 7,2009. The monthly statement for March 2008 indicated that the defendant's account hadbeen opened in February 2008 when the defendant transferred a $19,000 balance due onan account with another card issuer. At that point, the annual interest rate was 12.6%, buta 5.52% rate applied to $11,803.60 of the balance. The next monthly statement indicatedthat, under "Offer 6," an annual rate of 3.99% was applicable to the entire balance due onthe defendant's account, which, at that time, was $18,802. Over the next 12 months, thedefendant made no purchases on the account, and he made 12 timely, sufficientpayments, mostly in the amount of $300. By doing so, he reduced the outstandingbalance by about 15% of the original total, to $16,175.59.
In April 2009, the defendant transferred to the Citibank account an additional $8,000balance due on a different credit card account. The statement for April 2009 indicatesthat the "Total New Balance" was $24,174.31. The defendant's minimum payment wasincreased from $242 for the payment due on April 1, 2009, to $362 for the payment dueon May 1, 2009.
The May statement reflected that the defendant had made a timely payment of $400.It also reflected that the annual percentage rate on the older balance was 3.99% pursuantto "Offer 6," and the annual percentage rate on the newly transferred balance was 6.99%pursuant to "Offer [*2]7." By his timely $400 payment,the defendant had reduced his "total new balance" from $24,174.31 to $23,872.75(finance charges for the month were $98.44). The statement also indicated, however,that, despite the defendant having made uninterrupted timely sufficient payments fromthe inception of the account, Citibank had reduced his credit limit from $25,000 to$24,180, leaving an "available credit line" of $307. The May 2009 statement indicatedthat the next payment was due on June 1, 2009; the minimum payment was $358.
The defendant made a payment three weeks before the due date, but only in theamount of $300. Citibank responded to the $58 shortfall by increasing the annualpercentage rates from the "Offer 6" rate of 3.99% and the "Offer 7" rate of 6.99% to29.99%. Consequently, Citibank imposed finance charges of $409.94 on the earlieramount and $218.53 on the recently transferred amount, for a total finance charge thatmonth of $628.47. Citibank added a late fee of $39. Additionally, because the financecharges caused the defendant's balance to exceed the defendant's newly reduced creditlimit, Citibank imposed another $39 for an "over credit limit fee." The defendant's nextpayment was due on July 2, 2009; the minimum payment was $1,066.69.
The defendant did not make any payment, and Citibank imposed finance chargestotaling $605.62, a late fee of $39, and an over credit limit fee of $39. The total newbalance was $24,962.84. The defendant's next payment was due on August 3, 2009; theminimum payment was $2,643.93.
The defendant did not make any payment, and Citibank imposed finance chargestotaling $622.67, a late fee of $39, and an over credit limit fee of $39. The total newbalance was $25,663.51. The defendant's next payment was due on September 1, 2009;the minimum payment was $4,262.27.
The defendant did not make any payment, and Citibank imposed finance chargestotaling $683.38, and a late fee of $39. The total new balance was $26,385.89, andpayment of that entire amount was due on October 5, 2009.
The defendant did not make any payment, and, in a monthly statement covering theperiod from September 9, 2009, to October 7, 2009, Citibank imposed finance charges of$635.96, and a late fee of $39. The total new balance was $27,060.85, and payment ofthe entire amount was due on November 3, 2009.
According to an affidavit of a Citibank employee, a payment of $75 wassubsequently received on the account, but the affidavit contains no indication as to whenit was received. The affidavit states that the "Account Statement"—composed ofthe monthly statements—"does not reflect any outstanding disputes on theAccount." Citibank did not submit any cardholder agreement in support of itsmotion.
In opposition to the motion, the defendant submitted an undated letter that, hecontends, he sent to Citibank's attorneys in response to a letter dated April 9, 2010, inwhich Citibank demanded an unpaid balance of $26,985.85. In that undated letter, thedefendant asserted that he did not owe that amount to Citibank, but that he was "willingto continue negotiations on a settlement as [he] was doing with GC Services." Thedefendant also provided certain details as to the negotiations, but did not provide detailsas to when the negotiations occurred. The Supreme Court granted Citibank's motion, andthe defendant appeals.
Citibank failed to establish its prima facie entitlement to judgment as a matter of lawon its cause of action alleging breach of contract. Specifically, Citibank failed toestablish the terms of its agreement with the defendant with respect to its right to lowerthe defendant's credit limit while he was making sufficient, timely payments or to raisehis "Offer 6" and "Offer 7" interest rates and his minimum payment. Accordingly, theSupreme Court should have denied that branch of its motion without regard to the paperssubmitted in opposition to the motion by the defendant (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
[*3] Citibank likewise failed to establish its prima facieentitlement to judgment as a matter of law on its cause of action for recovery on anaccount stated. An account stated is an agreement between parties, based upon their priortransactions, with respect to the correctness of the account items and the specific balancedue (see Fleetwood Agency,Inc. v Verde Elec. Corp., 85 AD3d 850, 851 [2011]; American Express Centurion Bankv Cutler, 81 AD3d 761, 762 [2011]). Although an account stated may be basedon an express agreement between the parties as to the amount due, an agreement may beimplied where a defendant retains bills without objecting to them within a reasonableperiod of time, or makes partial payment on the account (see Citibank [S.D.], N.A. vBrown-Serulovic, 97 AD3d 522, 523 [2012]; American Express CenturionBank v Cutler, 81 AD3d at 762). The "agreement" at the core of an account stated isindependent of the underlying obligation between the parties (see Citibank [S.D.] N.A. vCutler, 112 AD3d 573, 573 [2013]). Here, as already noted, Citibank alleged anaccount stated of $26,985.85. In support of its motion, Citibank submitted proof that itmailed regular monthly statements to the defendant through October 7, 2009.
Citibank failed, however, to establish that the defendant retained this final monthlystatement without objecting to the "total new balance" contained on the statement withina reasonable time. In her affidavit, the Citibank employee averred that the "attachedAccount Statement does not reflect any outstanding disputes on the account." However,the fact that the final statement did not reflect a protest does not prove that the defendantdid not dispute the statement, since any protest would necessarily come after thestatement was received by the defendant. Moreover, the record does not establish whenthe defendant sent a partial payment of $75, and, in any event, that payment was so smallin relation to the alleged amount due that it does not give rise, prima facie, to aninference of assent to the total amount alleged to be due (see Citibank [S.D.], N.A. vBrown-Serulovic, 97 AD3d at 523).
Accordingly, Citibank failed to establish its prima facie entitlement to judgment as amatter of law on its cause of action to recover on an account stated. Therefore, theSupreme Court should have denied this branch of the motion without regard to theadmissibility or probative value of the evidence submitted by the defendant in opposition(see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Matter ofRedemption Church of Christ of Apostolic Faith v Williams, 84 AD2d 648, 649[1981]; Stelick v Gangl, 47 AD2d 789, 789 [1975]).
In light of this determination, we need not address the parties' remaining contentions.Balkin, J.P., Austin, Miller and Hinds-Radix, JJ., concur.