Upon the foregoing papers, it is hereby ordered that plaintiff's motion for summary judgment is denied, and defendant's cross motion to amend the answer is granted solely to the extent noted below.

Defendant admits that she had a Chase credit card from some time in 2003 to some time in 2005. She further admits that she incurred debt on the card, that she made some payments, but "was unable to keep up with payments on the card...." (Cross-Moving, Exh. A, ¶5.) Defendant's answer admits, by implication, that she owes money on the card. However, plaintiff has not demonstrated that it has standing to bring this action. The affidavit of Erik J. Hunter (Moving, Exh. D), simply claims that he is authorized by Chase Bank to make the assertions contained therein. There is no indication as to what his position, if any, is within Chase Bank USA, N.A., nor upon what authority or records he bases his conclusions. Additionally, this affidavit, attested to in Maryland, does not satisfy the requirements of CPLR 2309(c).

Furthermore, defendant is correct in its assertion that the affidavit submitted by plaintiff is not based on personal knowledge of the generation and mailing to defendant of the credit card statements sufficient to satisfy the business records exception to the hearsay rule. As such, plaintiff has not made out a prima facie showing of an account stated. Without demonstrable standing to bring the action and sufficient evidentiary support to make out a prima facie claim for breach of contract or account stated against defendant, plaintiff's motion for summary judgment is denied. [*2]

As for defendant's cross motion to amend its answer, same is granted only to the extent of allowing defendant to add an affirmative defense based on allegations that plaintiff lacks standing to bring this claim. Defendant also seeks to amend her answer to include a (proposed first) affirmative defense of lack of jurisdiction. Not only is such a claim untimely in that it was not raised in a pre-answer motion or in the initial answer, see CPLR 3211(e) (that defendant originally chose to proceed pro se in this action does not absolve her of the requirement to raise all defenses timely), but defendant has failed to satisfactorily rebut the presumption that same was properly served. Defendant has admitted receiving the summons and complaint through the mail (see mailing component of CPLR 308(4)), but has not claimed that she was home at the time of the three alleged service attempts. Defendant's third proposed affirmative defense is a duplicate of the defense already raised (defendant does not owe the amount claimed) and thus, defendant may continue to rely on said defense in opposing plaintiff's claim, and may include same as part of its amended answer.

Based on the foregoing, plaintiff's motion for summary judgment is denied, and defendant's cross motion to amend its answer is granted to the extent that the proposed amended answer, attached to the cross-moving papers as Exh. H, is deemed served and filed, however the first affirmative defense is stricken and only the second and third affirmative defenses remain.

Dated:September 17, 2008

Arthur F. Engoron, J.C.C.