Upon reading Plaintiff's Motion for Summary Judgment ("Motion #1"), together with all supporting documents, Plaintiff's Motion is decided as follows.

On April 2, 2024, Plaintiff commenced the instant action by filing the Summons and Complaints to recover consumer credit card debt in the amount of $15,205.42 with costs and disbursements. Defendant joined the action by filing an Answer on June 3, 2024, which contained a general denial and six affirmative defenses. On September 17, 2024, Plaintiff filed the Motion based on breach of contract and account stated claims, contending that Defendant failed to demonstrate that a triable issue of fact existed.

To prevail on a motion for summary judgment, the movant must show that "there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (see Winegrad v New York Univ Med Center, 64 NY2d 851, 853, [1985]; Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007]; Ostrov v Rozbruch, 91 AD3d 147, 152, 936 NE2d 31 [1st Dept 2012]). The movant has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; GTF Mktg. v Colonial Aluminum Sales, 66NY2d 965, 967 [1985]; see also Kershaw v Hospital for Special Surgery, 114 AD3d 75, 87-88, 978 N.Y.S. 2d 13 [1st Dept 2013]). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (see Zuckerman, 49 NY2d 557, 562 [1980]).

Only when the movant meets this burden, does the burden shift to the opposing party to submit proof in admissible form that establishes a triable issue of fact (CPLR 3212[b]); see Zuckerman, 49 NY2d 557 [1980]; Kosson v Algaze, 84 NY2d 1019, 646 NE2d 1101, 622 NE2d 674 [1995]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000]).

The Court notes that summary judgment is a drastic remedy and should not be granted where there are material and triable issues of fact present (see Stillman v Twentieth Century Fox F. Corp., 3 NY2d 395 [1957]; F. Garofalo Elec Co v NY Univ, 300 AD2d 186 [1st Dept 2002]). The evidence must be viewed in the light most favorable to the party opposing the motion, including resolving all reasonable inferences in that party's favor (see Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014]). Where different conclusions may reasonably be drawn from the evidence, the motion must be denied (see Sommer v Federal Signal Corp., 79 NY2d 540 [1992]; Jaffe v Davis, 214 AD2d 330 [1st Dept 1995]).

To prevail on a breach of contract claim, a plaintiff must establish 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 Harris v Seward Park Housing Corp., 79 AD3d 425, 913 N.Y.S.2d 161 [1st Dept 2010]).

In the instant action, Plaintiff submitted: a copy of credit card agreement stating Defendant's name ("Agreement"); a copy of letters, dated November 2010, April 2011, September 2013, and July 2015, notifying Defendant of amendments made to the Agreement, and containing the details of such amendments; a copy of all of Defendant's monthly periodic account statements from June 2021 to June 2023 ("Statements"); an Affidavit by White, an employee, Officer of and a custodian of records for Plaintiff, dated September 25, 2024; a copy of a notice from the Comptroller of the Currency, dated October 1, 2024, which licensed FIA Card Services, N.A. as it merged with and under the title of Plaintiff; a copy of the Assistant Secretary's Certificate of Plaintiff; and an attorney's Affirmation in Support by Flynn, Esq., dated October 17, 2024.

Plaintiff's supporting documents indicate that Defendant entered into a credit card agreement with Plaintiff, where Plaintiff extended to Defendant a line of credit, and Defendant received a credit account with an account number ending in 4807 ("Account"). The Statements referenced Defendant's name, address, account number, the dates of the transactions, the balance [*2]owed, and the payments received. Such monthly Statements are self-authenticating (see Portfolio Recovery Assoc., LLC v Lall, 127 AD3d 576, 8 NYS3d 101 [1st Dept 2015]; Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336, 337, 819 NYS2d 223 [1st Dept 2006]). The most recent Statement for the period of June 12 — July 11, 2023, indicated that Defendant owed Plaintiff an aggregate total of $15,205.42. The Affidavit of White, a person with "personal knowledge of and access to [Plaintiff's] books and records relating to the account of [Defendant]", stated that as of the execution date of the Affidavit, a total amount of $15,205.42, including pre-charge-off interest allowed under the Agreement, was owed by Defendant to Plaintiff. The Affidavit also stated that Plaintiff's books and records ("Business Records") were made in the regular course of business, that it was the regular course of such business to maintain such Business Records, that Defendant's Statements were a true and accurate representation of Defendant's debt owed to Plaintiff and that the Business Records were made near or at the time of the events described therein. As Plaintiff's Business Records were made pursuant to "an established procedure for the routine, habitual, systematic making of records that would qualify them as trustworthy accounts" and were "regularly relied on" by Plaintiff, the Court finds that Plaintiff has established a sufficient foundation for the admissibility of the Statements as business records (see People v Kennedy, 68 NY2d 569, 579-580, 503 N.E.2d 501, 510 N.Y.S.2d 853 [1986]; see also CPLR 4518[a]).

As such, Plaintiff has established a prima facie case under its breach of contract claim. The burden is then shifted to Defendant to submit proof in admissible form sufficient to raise a triable issue of fact.

Defendant made a general denial of both Plaintiff's breach of contract claim on the ground that Defendant lacked knowledge or information sufficient to form a belief as to the truth or falsity of Plaintiff's allegations.

Defendant also made six affirmative defenses in its Answer. While Defendant argued in its Second Affirmative Defense that Defendant denied the amount owed to Plaintiff, Defendant failed to offer the Court with any documentary evidence in support of its claim. Defendant failed to identify a single payment not credited, or interest, non-interest fees and penalties miscalculated. In fact, Defendant failed to offer any form of evidence at all and instead relied solely on conclusory and unsubstantiated assertions. The Court is not able to reach a determination of whether different conclusions may reasonably be drawn from the evidence relying merely on such assertions (see Sommer, 79 NY2d 540 [1992]; Jaffe, 214 AD2d 330 [1st Dept 1995]). Indeed, Defendant failed to appear and failed to oppose the Motion. Therefore, Defendant has failed to meet the burden of establishing a triable issue of fact, and its contentions are without merit.

For the same reasons as the foregoing, the Court is not persuaded by Defendant's other affirmative defenses in its Answer that there were issues regarding Plaintiff's failure to state a claim, doctrines of estoppel, unclean hands and waiver, the existence of breach of any duty or obligations owed to Plaintiff, and failure satisfy all conditions precedent.

Therefore, the Court finds that Defendant has failed to identify a triable issue of material fact to sufficiently preclude Plaintiff's Motion.

"An account stated is an agreement, express or implied, between the parties to an account [*3]based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them" which is "independent of the original obligation" (see Citibank [S.D.] N.A. v Cutler, 112 AD3d 573, 573-574, 976 NYS2d 196 [2nd Dept 2013]). "The receipt and retention of an account, without objection, within a reasonable period of time, coupled with an agreement to make partial payment, gives rise to an account stated entitling the moving party to summary judgment in its favor" (see Morrison Cohen Singer & Weinstein v Ackerman, 280 AD2d 355, 355-356, 720 N.Y.S.2d 486 [1st Dept 2001]; Biegen v Paul K. Rooney, P.C., 269 AD2d 264, 703 NYS2d 121 [1st Dept 2000]).

In support of the account stated claim, the Affidavit of White demonstrated that Ms. White had personal knowledge of Plaintiff's processes and procedures for the delivery of the terms and conditions, changes to the applicable terms and conditions and the monthly account statements to Plaintiff's customers. The Affidavit stated that such account documentation was delivered to Plaintiff's customers either by regular, first-class mail via USPS to the customer's address indicated on the account statement and/or electronic means. The Affidavit also stated that Ms. White had personal knowledge of the fact that the Statements were sent to Defendant in the manner stated in the foregoing, and that based on Plaintiff's Business Records, there were no unresolved billing disputes regarding Defendant's Account. In fact, Defendant continued to make partial payments until its last payment on or about December 5, 2022, in the amount of $349, as demonstrated by the monthly Statements presented. The Motion adequately demonstrated that Plaintiff sent the Statements to Defendant, that Defendant accepted and retained the Statements for a reasonable period of time without objection and made partial payments until December 2022. Failure to object constitutes an assent to pay the invoice (see Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 AD3d 161, 162, 798 N.Y.S.2d 379 [1st Dept 2005]; RPI Professional Alternatives, Inc. v. Citigroup Global Mkts. Inc., 61 AD3d 618, 619, 878 N.Y.S.2d 36 [1st Dept 2009]). As such, Plaintiff has demonstrated a prima facie account stated claim.

The Court finds that Defendant's unsupported and conclusory allegations in its Answer are insufficient to raise a triable issue of fact as to the existence of an account stated. In its Answer, Defendant failed to raise the issue that the monthly Statements were not received by Defendant, or that Defendant had ever objected to the content of such Statements, regarding the details of the purchases made, payments received and balances due. Instead, Defendant merely made a general denial stating that it lacked knowledge or information sufficient to form belief as to the truth or falsity of the allegations based on account stated. Thus, Defendant's contentions are without merit, and insufficient to preclude Plaintiff's Motion for Summary Judgment.

Accordingly, it is

ORDERED that Plaintiff's Motion for Summary Judgment is GRANTED on default, and a judgment in the amount of $15,205.42 is awarded to Plaintiff against Defendant. Plaintiff shall serve Defendant with this order with notice of entry within 45 days of this order.

This constitutes the DECISION and ORDER of this Court.