Appeal by plaintiff from an order of the District Court, Nassau County (A. Anzalone, J.), entered May 10, 2004, denying plaintiff's motion for summary judgment.

Order unanimously reversed without costs and plaintiff's motion for summary judgment granted in the principal sum of $7,753.72.

Plaintiff instituted this action to recover the outstanding balance due on a credit card issued to defendant. Plaintiff's first cause of action alleged a default in payment pursuant to the agreement. Its second cause of action was based on an account stated. The court below denied plaintiff's motion for summary judgment.

In support of the motion, plaintiff's employee stated in her affidavit that monthly statements of the charges incurred and minimum payment due were sent to defendant
during the period in question and retained by her without objection. The affidavit and the attached statements supported plaintiff's contention that defendant breached the agreement during said period by failing to make the minimum payments due. Defendant, in her affidavit in opposition to the motion, did not contest the validity or accuracy of the statements.

An account stated is an agreement between the parties that the debt is valid and due (see Citibank [S.D.] v Jones, 272 AD2d 815 [2000]), and a defendant's receipt and retention of plaintiff's account without objecting within a reasonable time entitles plaintiff to summary judgment on the account stated independent of the obligation (see Warner v Nelkin, 206 AD2d 422 [1994]). In view of the foregoing, plaintiff's motion for summary judgment based on its second cause of action, i.e., an account stated, should have been granted.

We note that in its appellate brief, plaintiff indicated that it was waiving any right to reasonable attorney's fees. Accordingly, we do not reach any issue relative thereto.
Decision Date: July 06, 2005