Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered January 18, 2012, deemed from a judgment of the same court entered March 14, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 18, 2012 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $11,332.15.

ORDERED that the judgment is reversed, without costs, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

In this action for breach of a credit card agreement and upon an account stated, defendant appeals from an order of the Civil Court entered January 18, 2012 granting plaintiff's motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law with respect to its cause of action based on a breach of a credit card agreement, since plaintiff did not provide proof of, among other things, the various purchases or transactions allegedly made with the credit card (see Adverlight Collections, Inc. v Naydensky, 25 Misc 3d 126[A], 2009 NY Slip Op 52051[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Direct Merchants Credit Card Bank [*2]v Lazareva, 10 Misc 3d 128[A], 2005 NY Slip Op 51912[U] [App Term, 2d & 11th Jud Dists 2005]). Furthermore, plaintiff failed to make a prima facie showing as to its cause of action based on an account stated, since plaintiff did not adequately demonstrate that there was an account between the parties and that a specified balance was found to be due (see generally Citibank [S.D.] v Jones, 272 AD2d 815, 816 [2000]). The supporting affidavit of plaintiff's officer and custodian of records did not set forth any facts establishing the specific monthly statements allegedly mailed to defendant (see Citibank [SD] N.A. v Goldberg, 24 Misc 3d 143[A], 2009 NY Slip Op 51735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In any event, the officer's affidavit failed to contain facts showing that defendant had retained the alleged account for an unreasonable amount of time without objecting to it (see Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993]; Citibank [SD] N.A. v Goldberg, 24 Misc 3d 143[A], 2009 NY Slip Op 51735[U]; Discover Bank v Williamson, 14 Misc 3d 136[A], 2007 NY Slip Op 50231[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied.

Pesce and Rios, JJ., concur.

Weston, J.P., dissents in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : WESTON, J.P., PESCE and RIOS, JJ.
FIA CARD SERVICES, N.A.,

Respondent,

-against-

NO. 2012-828 Q C

DECIDED
GEMMA KODUMAL,

Appellant.

Weston, J.P., dissents and votes to affirm the judgment in the following memorandum:

In my opinion, plaintiff, in its motion for summary judgment, made a prima facie showing of entitlement to judgment as a matter of law on its causes of action for breach of contract and for an account stated, and defendant's submissions in opposition failed to raise a triable issue of fact. Accordingly, I would affirm the judgment in favor of plaintiff.

In support of its breach of contract cause of action, plaintiff presented proof of an agreement, which defendant had accepted by making payments, and which defendant had breached when she had failed to make the required payments (see Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 524 [2012]). Although plaintiff submitted no charge slips showing purchases made, plaintiff did submit monthly statements, which clearly reflect a cash advance of $14,900, beginning with the November 2006 statement. Defendant never objected to the cash advance and, in fact, made payments on it over most of the period at issue.

Plaintiff also established its entitlement to judgment as a matter of law on its cause of action based on an account stated. To support such a claim, plaintiff must set forth "facts as to the specific monthly statements allegedly mailed to defendant," and show that defendant had retained those statements "for an unreasonable time without objecting thereto" (Citibank [SD] N.A. v Goldberg, 24 Misc 3d 143[A], 2009 NY Slip Op 51735[U] [App Term, 2d, 11th & 13th [*4]Jud Dists 2009]). "[W]hile the mere silence and failure to object to an account stated cannot be construed as an agreement to the correctness of the account, the factual situation attending the particular transactions may be such that, in the absence of an objection made within a reasonable time, an implied account stated may be found" (Yannelli, Zevin, & Civardi v Sakol, 298 AD2d 579, 580 [2002] [internal quotation marks omitted]).

Here, plaintiff's submissions were sufficient to demonstrate an implied agreement as to the correctness of the account. Plaintiff submitted 36 months of account billing statements addressed to defendant, from November 2006 to February 2010, which, according to its officer and custodian of records, were generated in the regular course of business (compare American Express Centurion Bank v Cutler, 81 AD3d 761, 762 [2011] [plaintiff failed to make a prima facie showing on its claim to recover on an account stated where plaintiff's submissions failed to include the monthly credit card billing statements]). During most of that time, defendant made periodic payments, with the last payment being on or about June 5, 2009. Defendant, in opposition, did not contest having received the statements, nor did she submit proof that she had objected to the statements within a reasonable time. In view of three years of billing statements, and the fact that defendant had made payments on those statements over much of that period, plaintiff established that defendant had retained those statements for an unreasonable time without objection. In the absence of any admissible proof to the contrary, the Civil Court correctly granted plaintiff's motion for summary judgment on this cause of action as well.

Accordingly, I vote to affirm the Civil Court's judgment.
Decision Date: June 27, 2013