Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:

Upon the foregoing cited papers, the Decision and Order on defendant's notice of motion for summary judgment along with plaintiff's opposition and defendant's reply is decided as follows:

Plaintiff in their summary judgment motion alleged that plaintiff extended a line of credit to defendant who initially submitted monthly payments and later failed to make the required payments, leaving a balance of $5,303.57. Defendant in opposition questioned the affidavit submitted by plaintiff alleging the affiant lacked personal knowledge and failed to establish the business record exception for the monthly credit card statements. Based upon the decision below, defendant's motion for summary judgement is granted.

Summary judgment is the procedural equivalent of a trial and is a drastic remedy which essentially deprives a litigant of his or her day in court and should be employed only when there is no doubt as to the absence of triable issues of fact, or where the issue is even arguable. Andre v Pomeroy, 35 NY2d 361 (1974); Sillman v Twentieth Century- Fox Film Corp. 3 NY2d 395 (1957); Steven v. Parker, 99 AD2d 649 (2d Dept 1984).

Once the movant has made a prima facie showing, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial. Zuckerman v City of New York, 49 NY2d 557 [1980]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]. Mere conclusions of law or fact are [*2]insufficient to defeat a motion for summary judgment (Banco Popular N. Am. v Victory Taxi Mgmt., 1 NY3d 381 [2004]).

Plaintiff established defendant's breach of contract when they" . . . tendered sufficient evidence that there was a credit card agreement, which the defendant[s] accepted by using the credit card and making payments thereon, and that the agreement was breached by the defendant[s] when [they] failed to make required payments" American Express Nat'l Bank v Zelkovitz, 241 AD3d 1226, 1227 [2d Dept 2025]. Here Plaintiff submitted the affidavit of a bank officer who was a custodian of records for plaintiff Bank of America, who averred, that she was "personally familiar and knowledgeable about the books and records including electronic records. The affiant stated she had personal knowledge of plaintiff's procedures for creating and maintaining these records. The affiant explained that these records were made in the regular course of business, and these records were made at or near the time of the events recorded. Further the affiant explained that the monthly statements were delivered to plaintiff either by Unites States Postal Service and/or electronic means. The affiant submitted records from February 2019 to June 2022 that showed payments submitted by defendant to his credit card in an effort to reduce the outstanding balance and later failed to make the required payments. Thus, establishing a breach of contract.

Now for plaintiff to recover the $5,303.57 from the breach of contract plaintiff must established that they . . . " generated account statements for the defendant[s] in the regular course of business, that it mailed those statements to the defendant[s] on a monthly basis, and that the defendant[s] accepted and retained these statements for a reasonable period of time without objection, and made partial payments thereon" See Zelkovitz at 1228; American Express Centurion Bank v Gabay, 94 AD3d 795, [2d Dept 2012]. This again was accomplished by the affidavit from the custodiam of records from plaintiff Bank of America, when she stated the monthly credit card statements were sent to the address listed on the credit card statement which was provided by defendant. Moreover, the affiant further stated there were no unresolved billing disputes on defendant's account. In addition, defendant in his affirmation never mentioned that he objected to the stated amounts that appeared on his monthly statements to plaintiff. Thus, an agreement can be implied as to the accuracy of the defendant's monthly credit card balances by retaining these monthly statements for a reasonable period of time without an objection. Cach LLC v Aspir, 137 AD3d 1065, 1066 [2d Dept 2016]. Thus, the credit card balances were deemed valid given the lack of objection by defendant and payments made thereafter on the credit card.

Defendant opposition failed to raise a material issue of fact as to whether he received the monthly credit card statements, whether he kept the statement without objection, or whether the credit card statements he received accurately reflected the amount owed. Cach LLC v Aspir, 137 AD3d 1065, 1067 [2d Dept 2016]. Nor did defendant suggest that he did not authorize the credit card charges. Defendant neglected to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact that would require a trial. Accordingly, the plaintiff motion for summary judgment is granted.

This constitutes the Order and Decision of the Court.