Citibank (SD), N.A. v Bryce (2006 NY Slip Op 52021(U))

Citibank (SD), N.A. v Bryce

2006 NY Slip Op 52021(U) [13 Misc 3d 1227(A)]

Decided on June 1, 2006

Supreme Court, Monroe County

Rosenbaum, J.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Plaintiff seeks summary judgment and attorney fees as a result of Defendant's breach of contract of a credit card agreement. Defendant appeared for oral argument before the Court on February 9, 2006.

Defendant requested a credit card from Associated National Bank who merged with Plaintiff on January 7, 2002. Upon approval of Defendant's application, defendant was issued a credit card which was mailed to him along with a Card Member Agreement. Upon use of the credit card the Card Member Agreement became binding. Defendant charged goods and services to the account and has defaulted in payment. Defendant owes a balance of $7,078.61. A Summons and Verified Complaint were filed on August 19, 2005 and were served upon Defendant on September 7, 2005. Defendant submitted an answer dated October 1, 2005.

Defendant does not set forth any factors in his answer which would preclude a grant of summary judgment in this matter. Defendant alleges that there is no contract and therefore he is not required to pay. It has been established that in the absence of a binding credit agreement, the "issuance of the credit card constitutes an offer of credit, and the use of the credit card constitutes the acceptance of the offer of credit." Feder v. Fortunoff, Inc., 123 Misc 2d 857. [*2]

Defendant also alleges there is an error in the accounting. Defendant has failed to offer proof in acceptable form that the accounting is incorrect.

It is well established that a motion for summary judgment should be granted where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. MBNA America Bank , N.A. v. Paradise, 285 AD2d 586 (2nd Dept., 2001). Once the Plaintiff has set out its case, it is the Defendant who has the burden of proving that triable issues of fact exist. Reynolds Metal Co. v. EM's Supply Co., Inc., 62 AD2d 882, (3rd Dept. 1983).

Plaintiff requests attorney fees which are permitted under the credit agreement. Plaintiff is awarded attorney fees in the amount of $1,344.94 and the motion for summary judgment is granted. Plaintiff to submit Order.