Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 5, 2008. The judgment, insofar as appealed from, entered following plaintiff's failure to proceed to trial, dismissed the complaint. The appeal brings up for review an order entered June 14, 2007 denying plaintiff's motion for summary judgment.

Judgment, insofar as appealed from, reversed without costs, order entered June 14, 2007 denying plaintiff's motion for summary judgment vacated, plaintiff's motion for summary judgment granted and judgment directed to be entered in favor of plaintiff in the principal sum of $12,043.33.

In this action, plaintiff seeks to recover the principal sum of $12,043.33, plus attorney's fees, based on a breach of a credit card agreement and upon an account stated. By order dated June 14, 2007, the Civil Court denied plaintiff's motion for summary judgment. A judgment was subsequently entered on June 5, 2008 dismissing the complaint as well as defendant's counterclaim. Plaintiff appeals from so much of the judgment as dismissed its complaint. An appeal from a final judgment brings up for review any nonfinal judgment or order which necessarily affects the final judgment (CPLR 5501 [a] [1]; see James v Powell, 19 NY2d 249, 256 [1967]; Rossi v Spano, 26 AD3d 388, 389 [2006]).

In our view, plaintiff's motion for summary judgment should not have been denied by the Civil Court on the ground that the out-of-state affidavit submitted by plaintiff in support of its motion did not comply with CPLR 2309 (c). Since defendant did not object to the form of plaintiff's affidavit, the court should have disregarded the defect (see CPLR 2001, 2101 [f]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]).

We find that plaintiff established its entitlement to summary judgment as a matter of law [*2]on its cause of action for breach of the credit card agreement. Plaintiff proved that defendant used the credit card, by presenting the itemized transactions (see MBNA America Bank, N.A. v Paradise, 285 AD2d 586 [2001]; Direct Merchants Credit Card Bank v Ugweches, 4 Misc 3d 140[A], 2004 NY Slip Op 51012[U] [App Term, 1st Dept 2004]), and that the sum sought therefor was due. Defendant did not challenge the accuracy or the bona fides of the underlying credit card transactions. Moreover, plaintiff established its prima facie entitlement to summary judgment upon its cause of action for an account stated by showing that monthly statements were sent to defendant and retained by him without objection (see Citibank [S.D.] v Jones, 272 AD2d 815 [2000]; Bank of America, N.A. [USA] v Salerno, 22 Misc 3d 128[A], 2009 NY Slip Op 50040[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

We note that plaintiff's motion for summary judgment failed to establish that plaintiff was entitled to attorney's fees, and plaintiff raises no issue concerning the fees on this appeal. Accordingly, the judgment dismissing the complaint is reversed, the order entered June 14, 2007 denying plaintiff's motion for summary judgment is vacated and judgment is directed to be entered in favor of plaintiff in the principal sum of $12,043.33.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 12, 2009