| Portfolio Recovery Assoc., LLC v Greer |
| 2009 NY Slip Op 52506(U) [25 Misc 3d 143(A)] |
| Decided on May 8, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T.
Pineda-Kirwan, J.), entered January 9, 2008. The order denied plaintiff's motion for summary
judgment.
Order affirmed without costs.
In this action to recover for breach of a credit card agreement and upon an account stated, the Civil Court denied plaintiff's motion for summary judgment on the ground that the out-of-state supporting affidavit by plaintiff's employee failed to include a certificate of conformity as required for an affidavit notarized out of state (see CPLR 2309 [c]; Real Property Law § 299-a [1]). However, since defendant did not object to the omission, the court should have disregarded the defect in form (NYC East-West Acupuncture, P.C. v Maryland Cas. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51762[U] [App Term, 2d & 11th Jud Dists 2008]) and considered the merits of the motion.
Plaintiff failed to establish entitlement to summary judgment as a matter of law on its cause of action for breach of a credit card agreement since plaintiff did not provide proof itemizing the various purchases or transactions allegedly made with the credit card (see Discover Bank v Williamson, 14 Misc 3d 136[A], 2007 NY Slip Op 50231[U] [App Term, 9th & 10th Jud Dists 2007]; Direct Merchants Credit Card Bank v Lazareva, 10 Misc 3d 128[A], 2005 NY Slip Op 51912[U] [App Term, 2d & 11th Jud Dists 2005]).
Additionally, while plaintiff alleges in its complaint and moving papers that there was an account stated in the sum of $4,088.76, said sum is not the amount indicated in plaintiff's monthly statement annexed to the moving papers, which was allegedly mailed to defendant and retained by him without objection. Thus, the parties have not come together and agreed upon the balance of indebtedness (see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, [*2]153-154 [1975]). Consequently, plaintiff failed to establish prima facie its cause of action based upon an account stated.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: May 08, 2009