Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered May 7, 2009, deemed from a judgment of the same court entered August 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 7, 2009 order which, insofar as appealed from as limited by the brief, granted plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $21,006.62.

ORDERED that the judgment is affirmed without costs.

In this action for breach of a credit card agreement and upon an account stated, plaintiff moved for summary judgment and to dismiss defendant's counterclaim for harassment. Defendant submitted opposition papers, and, by order entered May 7,
2009, the Civil Court granted plaintiff's motion for summary judgment and dismissed defendant's counterclaim for harassment. The instant appeal by defendant ensued. A judgment was subsequently entered in favor of plaintiff, from which the appeal is deemed to be taken (see CPLR 5501 [c]). The appeal is limited by defendant's brief to a review of so much of the order as granted plaintiff's motion for summary judgment on its causes of action.

"An account stated is an agreement between parties to an account based upon [their] prior transactions . . . with respect to the correctness of the account items and balance due" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993]; see also Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 153 [1975]). Such an agreement is typically "implied by the retention of an account statement for an unreasonable period of time without objection" (Citibank [SD] v Jones, 272 AD2d 815, 815 [2000]; Schneider Fuel Oil v DeGennaro, 238 AD2d 495, 496 [1997]; Shea & Gould v Burr, 194 AD2d 369, 371 [1993]). In the instant case, 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 her without objection (see Citibank [SD], 272 AD2d 815; Discover Bank v Robinson, 24 Misc 3d 126[A], 2009 NY Slip Op 51220[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).

Contrary to defendant's contention, it was not necessary for plaintiff to submit a signed [*2]copy of the credit card agreement in order to prevail on its motion for summary judgment on its account stated cause of action (see Schutz v Morette, 146 NY 137, 141 [1895]; Citibank [S.D.] N.A. v Reine, 14 Misc 3d 130[A], 2007 NY Slip Op 50013[U] [App Term, 2d & 11th Jud Dists 2007]; Citibank [S.D.], N.A. v Macarle, 11 Misc 3d 128[A], 2006 NY Slip Op 50241[U] [App Term, 9th & 10th Jud Dists 2006]). Defendant's assertion, raised for the first time in her reply brief, that she had never applied for the credit card, is dehors the record and will not be considered. In addition, defendant's defense of lack of personal jurisdiction is deemed waived since she failed to assert said defense in her answer or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [e]; Interlink Metals & Chems. v Kazdan, 222 AD2d 55 [1996]; Teachers Fed. Credit Union v Jones, 23 Misc 3d 139[A], 2009 NY Slip Op 50967[U] [App Term, 9th & 10th Jud Dists 2009]).

In view of the foregoing, we find that the Civil Court properly granted plaintiff's motion for summary judgment, and we affirm the judgment.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010