The following papers numbered 1 to 12 were read on this motion by the plaintiff, AMERICAN EXPRESS BANK, FSB, for an order pursuant to CPLR 3212 granting summary judgment in favor of the plaintiff in the amount of $218,414.68;

Papers Numbered

Notice of Motion-Affidavits-Exhibits...................1 - 7 Affirmation in Opposition-Affidavits...................8 - 10

Reply affirmation.....................................11 - 12

This is an action commenced by the plaintiff American Express Bank, FSB to obtain a money judgment in the amount of $218,414.68 with interest against the defendant for breach of a credit agreement. Plaintiff also asserts causes of action for account stated and for unjust enrichment. The action arose out of the defendant's alleged default in paying the balance due on a business credit card account provided to him by American Express.

Plaintiff now moves for summary judgment. In support of the [*2]motion plaintiff submits a copy of the Credit Card Agreement, and copies of statements in the name of Daniel E. Dechon and Desonics, Inc. from September 6, 2009 through October 9, 2011. Plaintiff also submits an affidavit from one, Danielle Nichols, Assistant Custodian of Records for American Express dated August 26, 2013. Ms. Nichols states that the defendant was the holder of an American Express Bank credit card that enabled him to charge items to American Express. She states that defendant was the basic cardmember on the account and was responsible for paying all amounts charged. She states that defendant made application to American Express to open an account in November 1990 and thereafter a credit card together with a copy of the agreement was sent to the defendant at the address provided by the defendant. The agreement states that the cardmember is bound by the terms of the agreement once the cardmember uses the card. Subsequently, monthly statements were mailed to the defendant and the defendant acknowledged receipt of the statements by making partial payments towards the balance due on the account. According to the complaint, the defendant breached the agreement by failing to make full payment on the account. The statements submitted indicate that there was a balance due and owing to the plaintiff of $218,414.68 as of August 23, 2013.

Plaintiff's counsel, Steven P. Bann/Jonathan P. Cawley, Esq., also submits an affirmation stating that the defendant has been provided with documentation to establish his liability for the debt, failed to remit the balance due on his American Express account, and has failed to proffer any affirmative defenses.

In opposition, defendant Daniel Decheron submits an affidavit dated October 11, 2013, in which he contends that he is not personally liable on the credit card account and the proper defendant in this matter is his company, Desonics, Inc. He claims that he never personally signed any documents and does not recall signing an American Express application in his individual name. Defendant states that as the plaintiff has failed to produce a contract showing that he signed an American Espress application in his individual name, the motion fails to establish a prima facie case against him personally. Defendant Dechon asserts that the plaintiff has not produced a contract that obligates him individually to the credit card company. Defendant further argues that the corporate entity, is the account holder and defendant did not sign an agreement in which he personally guaranteed the corporate card account.

In reply, American Express contends that an agreement is formed when a party retains credit card bills without objection for a reasonable amount of time or makes partial payments towards [*3]those bills (citing Am. Express Centurion Bank v Gabay, 94 AD3d 795 [an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time or makes partial payment on the account]). In Am. Express Centurion Bank v. Gabay. supra., the court awarded summary judgment to the plaintiff stating "the plaintiff met its prima facie burden of establishing its entitlement to judgment as a matter of law, tendering evidence that it generated account statements for the defendant in the regular course of business, that it mailed those statements to the defendant on a monthly basis, and that the defendant accepted and retained these statements for a reasonable period of time without objection, and made partial payments thereon."

Further, plaintiff asserts that contrary to the contention of the defendant, pursuant to the cardmember agreement, a copy of which was annexed to the motion, the defendant Daniel Dechon is, in fact, personally liable for any charges on the account.

To grant summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Gitlin v Chirinkin, 98 AD3d 561 [2d Dept. 2012]; Winter v Black, 95 AD3d 1208 [2d Dept. 2012]). If the moving party fails to make such prima facie showing, then denial is required "regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Once the moving party makes its prima facie showing, to defeat the proponent's motion for summary judgment the burden then shifts to the opposing party to show facts sufficient to require a trial of any issue of fact (see Zuckerman v New York, 49 NY2d 557 [1980]).

A cause of action for breach of contract requires allegations of the existence of a contract, plaintiff's performance under the contract, defendant's breach of the contract and resulting damages (see JPMorgan Chase v. J.H. Elec. of New York, Inc., 69 AD3d 802 [2d Dept. 2010]).

Upon review and consideration of the plaintiff's motion, defendant's opposition and the plaintiff's reply thereto, this court finds that the plaintiff's motion for summary judgment is granted.

It is clear that the plaintiff issued the defendant a "Business Platinum Card" pursuant to a "Cardmember Agreement" dated August 8, 2011. The Agreement states on page one that the [*4]card was issued by American Express Bank, FSB, that the card was issued to Desonics, Inc. and to Cardmember Daniel E. Dechon. On page three of the Agreement under the title, "Words We Use in this Agreement," the Cardmember Agreement states: " We, us, and Our mean the issuer shown on page one. Except as provided below, Basic Cardmember means the person who applied for this account or to whom we address the bill in statements. Company means the business for which the Account is established. You and Your mean the basic cardmember and the company. You agree, jointly and severally to be bound by the terms of this agreement." The agreement also states: "when you ...use the account..you..agree to the terms of the agreement" Under the section "Promise to Pay," the Agreement states: " You promise to pay all charges, including charges you make even if you do not present your card or sign for the transaction."

The Agreement was not signed by the defendant but states that by using the business card, the cardholder agrees to the terms of the Agreement including the promise to pay all charges. Plaintiff contends that the terms of this agreement expressly provide that the defendant, Daniel Dechon is personally liable for the balance on the account.

Here, the plaintiff, American Express, commenced this action to recover damages for breach of contract and on an account stated against the defendant to recover an unpaid credit card balance in the amount of $218,414.68. In his answer, defendant does not assert any affirmative defenses and reiterates in his answer to plaintiff's request for interrogatories that no affirmative defenses are being asserted. The defendant's sole defense to the action is that he is not personally indebted to American Express as his account was a business account.

This Court finds that the plaintiff demonstrated its entitlement to summary judgment on its causes of action for breach of contract and account stated. 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 breached when he failed to make the required payments (see Citibank (South Dakota), N.A. v. Brown-Serulovic,, 97 AD3d 522 [2d Dept.2012]). Based upon the Nichols affidavit and the copies of the account statements, generated in the regular course of business, which contained the defendant's name as well as the business name, plaintiff tendered sufficient evidence that there was an agreement, which the defendant accepted by his use of the credit card and payments made thereon, and which was breached by the defendant when he failed to make required payments (see Citibank (South Dakota), N.A. v Brown-Serulovic,, [*5]97 AD3d 522 [2d Dept 2012]; Citibank N.A. v Sablic, 55 AD3d 651 [2d Dept 2008]; Feder v Fortunoff, Inc., 114 AD2d 399 [2d Dept. 1985]; American Express Centurion Bank v Charlot, 2010 NY Slip Op 32116(U) [Sup Ct. NY Co. 2010]; Citibank (S.D.), N.A. v Maniaci, 23 Misc 3d 1103(A)[Sup Ct. Nassau Co. 2009][the issuance of a credit card constitutes an offer of credit. The use of the card constitutes acceptance of the offer. The terms of the contract are the credit card agreement]). Defendant, in opposition, did not contest having received the statements, nor did he submit proof that he had objected to the statements within a reasonable time.

In opposition, the defendant failed to raise a triable issue of fact. It is clear that according to the terms of the agreement, which was provided to the defendant and which the defendant accepted by using the American Express card, both Daniel Dechon as a "Business Cardmember" and Desonics Inc. were both card members on the Account, and thus are both responsible for paying all amounts charged to the Account. By accepting and using the Business Card, Dechon and Desonics agreed to be bound, jointly and severally, to all of the terms and conditions set forth in the Agreement between Cardmember and American Express.

As American Express sent monthly statements to Dechon and Desonics which showed the balance due on the Account and as Dechon violated the agreement by failing to make the payments owed to American Express and as Dechon has failed to dispute that he received copies of the statements and does not dispute the amounts due, this Court finds that plaintiff is entitled to summary judgment on the causes of action for breach of contract and account stated and plaintiff is therefore entitled to a judgment in the amount of $218,414.68 (see American Express Centurion Bank v Roel, 36 Misc 3d 1242(A)[Sup. Ct. Queens Co., 2012]).

Settle Judgment on notice.

Dated: November 6, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.