[*1]
Citibank (SD) N.A. v Goldberg
2009 NY Slip Op 51735(U) [24 Misc 3d 143(A)]
Decided on August 10, 2009
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 10, 2009
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-1953 K C.

Citibank (SD) N.A., Respondent,

against

Mark Goldberg, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered September 28, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff's motion for summary judgment.


Order, insofar as appealed from, reversed without costs and plaintiff's motion for summary judgment denied.

In this action for breach of a credit card agreement and upon an account stated, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint. The court granted plaintiff's motion with respect to the account stated cause of action and denied defendant's cross motion. As limited by his brief, defendant appeals from the order insofar as it granted plaintiff's motion for summary judgment.

Plaintiff failed to establish, prima facie, its cause of action for an account stated since the supporting affidavit of Kristina Hall did not set forth any facts as to the specific monthly statements allegedly mailed to defendant (see Discover Bank v Williamson, 14 Misc 3d 136[A], 2007 NY Slip Op 50231[U] [App Term, 9th & 10th Jud Dists 2007]). Moreover, Hall's supporting affidavit failed to contain facts showing that defendant retained the alleged stated account for an unreasonable time without objecting thereto (see Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993]; Discover Bank v Williamson, 14 Misc 3d 136[A], 2007 NY Slip Op 50231[U] [2007], supra). Thus, plaintiff did not adequately demonstrate that there was an account between the parties and that a specified balance was found to be due (see generally Citibank [S.D.] v Jones, 272 AD2d 815, 816 [2000]). Therefore, the order, insofar as it granted plaintiff's motion for summary judgment, is reversed and the motion denied.

Rios and Steinhardt, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to affirm the order insofar as appealed from. [*2]

The real issue concerning the lower court's granting of summary judgment in favor of plaintiff turns on whether defendant accepted the bills sent to him as a true compilation of valid charges incurred. I find that defendant retained those bills for an unreasonable amount of time without ever raising an objection. Indeed, plaintiff's exhibits, submitted on the motion, reveal an extensive "package" of the monthly statements previously sent to defendant, covering a period of time from January 2001 through December 2004. Additionally, the statements show that defendant made numerous "minimum" payments over much of that period. Such payments effectively serve to acknowledge the debt, especially as they were too numerous to be regarded as mere mistakes.

I have considered defendant's opposing papers in the lower court as well as his confused and unfocused brief in support of his appeal. It appears from all the papers submitted by defendant that he does not contest having received the monthly bills; he acknowledges having made numerous payments; he does not contest that items were purchased by means of the subject credit card which created the debt at issue; and the card was never cancelled. Indeed, the only cogent argument that defendant raised is that the subject charges may have been incurred by his ex-wife during their marriage and that he no longer believes he bears any responsibility for these debts since he is no longer married.

Unfortunately, there is no legal merit to this argument. He is an obligor under this card, and all the purchases were incurred while he and his ex-wife were still married and while both had authority to make such purchases.

Despite all his protestations, defendant has failed to raise any valid defense that would negate his obligation to pay this debt as an account stated. Any defenses that could have been raised by defendant were waived by his actions.
Decision Date: August 10, 2009