In this action for breach of contract arising from pro se defendant's alleged failure to pay sums charged by him on a credit card, plaintiff moves for an order granting it summary judgment. Specifically, plaintiff contends that it is entitled to summary judgment because defendant breached the relevant agreement between the parties and because defendant was provided with statements evincing the debt, which he retained and to which he never objected. The instant motion is unopposed.

For the reasons that follow hereinafter plaintiff's motion is granted, on default and without opposition.

The complaint alleges one cause of action and states that plaintiff issued defendant a credit card, that plaintiff agreed to make payments for goods and services charged and/or for cash advances made thereon, and that defendant failed to make payments for charges on said card. Thus, plaintiff, presumably on a cause of action for breach of contract, seeks judgment in the amount of $7,221.18, said sum representing charges on the foregoing card.

Plaintiff's motion for summary judgment is granted insofar as plaintiff's evidence establishes that defendant breached the agreement to which he bound himself by using the credit card related thereto and that defendant failed to pay sums due under the agreement totaling $7,221.18.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. [*2]As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

In an action to recover amounts due and owing as a result of the failure to pay a credit card debt, a plaintiff can establish entitlement to judgment in two ways. First, a plaintiff establishes entitlement to judgment for breach of the relevant credit card agreement

by tendering sufficient evidence that there was an agreement, which the defendant accepted by his use of a certain credit card issued by the plaintiff and payments made thereon, and which was breached by the defendant when he failed to make the required payments

tendering sufficient 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

Notably, bank and credit card account statements are self-authenticating, and require no foundation for admission in evidence (Portfolio Recovery Assoc., LLC at 576; Merrill Lynch Bus. Fin. Services, Inc. v Trataros Const., Inc., 30 AD3d 336, 337 [1st Dept 2006]; Elkaim v Elkaim, 176 AD2d 116, 117 [1st Dept 1991], appeal dismissed 78 NY2d 1072 [1991]; Capital One Bank (USA) v Koralik, 51 Misc 3d 74, 76 [App Term 2016]).

In support of its motion, plaintiff submits an affidavit by Grace VonAncken (VonAncken), a Litigation Support Representative employed by Capital One Services, LLC, plaintiff's affiliate, who states the following: Upon review of plaintiff's records, and more specifically, the credit card account records for the account ending in 5287, she discerned that defendant applied for and received a credit card from plaintiff. Defendant used the card to obtain goods and/or cash advances. As a result of the foregoing usage, plaintiff generated monthly billing statements which itemized each and every transaction related to defendant's account. According to VonAncken, plaintiff was sent the billing statements attached to plaintiff's motion and never disputed them. VonAncken states that the agreement between the parties, appended to plaintiff's motion, required that defendant pay plaintiff for all amounts charged on the instant card. VonAncken states, that the documents - the statements and the agreement - appended to plaintiff's motion were made and kept in the ordinary course of plaintiff's business. VonAncken alleges that plaintiff is owed $7,221.18, representing sums charged by defendant on the card.

Based on the foregoing, plaintiff establishes prima facie entitlement to summary judgment on the sole cause of action asserted in the complaint, namely breach of contract. The Court is compelled to emphasize the foregoing because it appears the plaintiff also urges relief on a cause of action for account stated. However, such cause of action is never pleaded and therefore, judgment on that cause of action is precluded on the well settled principle of secundum allegata et probata, meaning that any judgment must be based on the claims and evidence presented by the parties.

To be sure, it is well settled that a plaintiff cannot recover on a cause of action not pleaded in the complaint (Lamphere v Lang, 213 NY 585, 588 [1915]; Romeyn v Sickles, 108 NY 650, 652 [1888]; Reid v Long Is. Bond & Mortg. Guar. Co., 198 Misc 460, 462 [Sup Ct 1949], affd sub nom, In re Reid's Estate, 277 AD 888 [2d Dept 1950]; Monell v Douglass, 3 Misc 252, 254 [NY Com Pl 1893]). To be sure, in Lamphere, where the complaint only alleged breach of contract but where the trial court allowed recovery on a cause of action for conversion, the Court of Appeals reversed, asserting

[p]leadings and a distinct issue are essential to every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action and then recover upon another, his complaint would serve no useful purpose. The rule that judgment should be rendered in conformity with the allegations and proofs of the parties, secundum allegata et probata, is fundamental in the administration of justice. Any substantial departure from this rule is sure to produce surprise, confusion and injustice

Here, as noted above, a review of the complaint indicates that plaintiff has only pleaded one cause of action for breach of contract. Despite the foregoing, the affidavit by VonAncken, submitted in support of the instant motion, advances - by asserting that plaintiff was mailed statements, which he kept and did not dispute - the essential elements of a cause of action for account stated. However, and again, an account stated is a separate cause of action, requiring different elements. Specifically, the proponent of a claim for accounts stated must establish that it generated account statements for the defendant, that it mailed those statements to the defendant, and that the defendant accepted and [*3]retained these statements for a reasonable period of time without objection, and made partial payments thereon (Keskin at 636; Brown-Serulovic at 523; Am. Exp. Centurion Bank at 795). Contrariwise, in an action for breach of contract, as alleged in the instant complaint, the essential elements "are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach" (Dee v Rakower, 112 AD3d 204, 209 [2d Dept 2013]; see Elisa Dreier Reporting Corp. v Global Naps Network, Inc., 84 AD3d 122, 127 [2d Dept 2011]; Brualdi v IBERIA Lineas Aeraes de España, S.A., 79 AD3d 959, 960 [2d Dept 2010]; JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). Accordingly, plaintiff is not entitled to summary judgment on the unpleaded cause of action for account stated.

Turning to the cause of action for breach of contract, here, plaintiff appends the relevant contract to its motion, which to the extent that VonAncken states that the same was "maintained in the ordinary course of business," is admissible. To be sure, business records, such as the contract herein can generally be admitted for consideration at trial or on a motion upon a proper foundation that the same are business records - namely, that (1) the record be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Here, while the foundation could have been more artfully laid, the Court finds that the same was nevertheless laid. Significantly, the agreement between the parties, obligates defendant to pay for charges made using the card given to him by plaintiff and further indicates that the failure to pay constitutes a breach of the agreement. Based on the agreement, to which defendant was bound when he used the card (Keskin at 636; Portfolio Recovery Assoc., LLC at 576; Brown-Serulovic at 524; Sablic at 652), the statements appended to the instant motion, which are self authenticating (Portfolio Recovery Assoc., LLC at 576; Merrill Lynch Bus. Fin. Services, Inc. at 337; Elkaim at 117; Capital One Bank at 76), and which evince that defendant did in fact use the card, and VonAncken's assertion that defendant has failed to repay $7,221.18, plaintiff establishes that defendant has breached the relevant agreement and, thus, establishes prima facie entitlement to summary judgment (Dee at 209 [the essential elements of an action for breach of contract are "are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach."]; see Elisa Dreier Reporting Corp. at 127; Brualdi at 960; JP Morgan Chase at 803; Furia at 695).

Insofar as the instant motion is unopposed nothing controverts plaintiff's prima facie showing and the instant motion is granted. It is hereby

ORDERED that the Clerk enter judgment in defendant's favor in the amount of $7,221.18, plus interest, costs and attorney's fees. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendant within thirty (30) days hereof.

This constitutes this Court's decision and Order.