Synchrony Bank v Dominic

Civil Court of the City of New York, Kings County

Decided on April 24, 2026

Index No. CV-007956-23/KI

Chidi A. Eze, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion to dismiss the complaint:

Papers Numbered

Plaintiff's Summary Judgment 1

Defendant's OSC to Amend Caption 2

Defendant's Opposition to Summary Judgment Motion 3

Plaintiff's opposition to Motion to Amend 4

Plaintiff's Reply re Summary Judgment Motion 5

FACTS OF THE CASE

The complaint alleges that plaintiff issued a revolving credit card called CARECREDIT, to defendant and that the charge off amount is at the time of filing this case, $5,270.54. This type of credit card is usually for the payment of medical and dental treatment. Defendant contends that "plaintiff's claim exclusively relates to funding dentistry services that were fraudulently billed by Canarsie Family and Cosmetic Dentistry on February 2, 2024" (Defendants Memo of law in Oppos, par.1). He contends that even though he visited the dental facility and consulted with them, he never received any services or treatment from them.

Before this court are Plaintiff's motion for summary judgment filed on February 2, 2024, and defendant's motion to amend its answer to add a third party to the caption (sic), filed March 20, 2025. Although the motion (by way of Order to Show Cause) to amend was filed later, it would be first decided, because its determination may affect how the court decides the summary judgment motion.

LEGAL STANDARD

Under CPLR §3025 (b), "[A] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading."

Under CPLR 3212, once the movant establishes a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Mere conclusions, unsubstantiated assertions, and self-serving allegations are insufficient to defeat a motion for summary judgment. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

DISCUSSION

I — Motion to Amend Caption

Defendant's motion to amend seeks leave to amend the caption of this case to add a third party, however, there are glaring defects here; 1) movant did not state who the proposed third party would be; 2) did not give a reason for the relief sought, not an explanation why additional person is needed on the caption and not the body of the case; and 3) did not attach the proposed amended complaint to the motion as required by CPLR §3025(b); 4) it only seeks to add a third party name to the caption without seeking to allege any wrong doing by this third party.

Also, plaintiff is correct that to add a third party to the action, the party seeking to add the third party must file "[a] third-party summons and complaint with the clerk of the court in the county in which the action is pending, for which a separate index number shall not be issued but a separate index number fee shall be collected." (CPLR §1007). Here, defendant did not file any such third-party summons and complaint.

Accordingly, defendant's motion for leave to amend to add a third party is DENIED without prejudice.

II — Summary Judgment Motion

Turning to plaintiff's motion for summary judgment, defendant challenges same on multiple fronts. First defendant claims summary judgment would not be appropriate here because plaintiff has not shown prima facie entitlement to judgment.

Although defendant posits that a breach of contract claim should fail where no actual contractual agreement was offered in evidence or exists, he ignores the plaintiff's argument, supported by case law, that "the issuance of a credit card is an offer .the offer is accepted when the cardholder uses the credit card" (Van Houten Affirm., par. 10). Nor does defendant deny that the credit card was charged by the dental facility for and on his behalf. Although defendant denies receiving any treatment/services from the dental facility, he did, for all intent and purposes, admit that he visited the dental facility and that the facility came into possession of the credit card through him.

Defendant argues that plaintiff does not submit, with its papers, "an affidavit from [*2]plaintiff or an agent, laying a proper foundation of this document [account statements] as a business record." The court disagrees with defendant that plaintiff's agent, Nelson Ramirez, did not lay proper foundation for the business record relied upon by plaintiff to show defendant's default. Mr. Ramirez attested to having personal knowledge and being personally familiar with the record keeping practices of plaintiff, who is the original creditor. Defendant is mistaken that the only affirmation that is included [in plaintiff's motion papers] is from plaintiff's counsel. It is obvious that defendant did not see the attached affidavit of Nelson Ramirez, which was filed alongside, and in support of, the motion for summary judgment, and dated December 23, 2023.

Defendant is right that the agreement annexed as plaintiff's Exhibit D, does not prove that it pertains to this defendant, as his name is found nowhere on that document. Be that as it may, plaintiff is not relying on that agreement (Exhibit D) to assert a breach of contract claim, rather, plaintiff is relying on defendant's alleged use of the card as proof of acceptance of the offer of the credit card. In support of this position, plaintiff cites several cases, including Feder v Fortunoff, Inc., 123 Misc 2d 857, 474 N.Y.S.2d 937 (Nassau Sup. Ct. 1984) (holding [I]n the absence of a binding credit agreement, the "issuance of the credit card constitutes an offer of credit, and the use of the credit card constitutes the acceptance of the offer of credit." quoting Empire Nat. Bank v Monahan, 82 Misc 2d 808, 809.). This decision was affirmed by the Second Department at 114 AD2d 399, 494 N.Y.S.2d 42 (1985) (holding [T]he issuance of a credit card constitutes an offer of credit which may be withdrawn by the offeror at any time prior to acceptance of the offer through use of the card by the holder).

Contrary to defendant's claim, it is not necessary for plaintiff to present evidence that it mailed the card to defendant. It only needs to show that defendant received and used the card. See Id.

Defendant argues that issues of facts exist to defeat summary judgment because his motion to implead the dental practice for fraud upon himself is still pending in this court. Defendant alleges that the dental practice perpetrated fraud upon him by charging the card without rendering any services to him.

As this court concluded hereinabove, defendant's purported motion to add a third-party to the caption of this case is woefully defective and is denied without prejudice. Moreover, even if the dental practice was added as a third-party defendant here, its inclusion would likely not affect nor alter defendant's liability to plaintiff, because plaintiff issued the card to defendant, and not to the dental practice.

Defendant's unjust enrichment defense, premised on his claim that the dental practice facility "received $5,000 that it does not deserve" because "I also never received this treatment", is better asserted against the dental practice, and not against plaintiff.

If defendant is looking to implead the dental practice for contribution, a defendant cannot assert a claim for contribution against any third-party where plaintiff's claim is for breach of contract. See CPLR §1401. A claim for contribution does not arise when the original claim is not founded upon personal injury, wrongful death or property damage. See Glens Falls v Crandell Assoc., 170 A.D/2d 866, 566 NYS.2d 689 (3rd Dept 1991); Elkman v Southgate Owners, 246 AD.2d 314, 668 NYS.2d 11 (1st Dept 1998) (citing Board of Ed v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 26, 523 NYS.2d 475). It then follows that defendant cannot assert a third-party claim against the dental entity for contribution.

For Indemnification, defendant may maintain a separate action for indemnification, fraud or unjust enrichment against the dental facility. Common-law indemnification is available to one [*3]who has committed no wrong but is held liable to the injured party because of some relationship with the tortfeasor. Elkman v Southgate Owners, supra. The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. See Morin v. Heritage Builders Group, LLC, 211 AD3d 1138, 179 N.Y.S.3d 436 (3rd Dept 2022). "The underpinning [of] indemnity actions is the prevention of unjust enrichment" Kaufman v P & G Brokerage, 82 Misc 3d 887, 209 N.Y.S.3d 270 (Kings Sup. Ct. 2024) (quoting State v. Stewart's Ice Cream Co., Inc., 64 NY2d 83, 88, 484 N.Y.S.2d 810, 473 N.E.2d 1184 [1984])

Since defendant's potential third-party claim against the dental facility is for indemnification,^FN1 as opposed to contribution, not adding the dental facility here would not affect any damages that may be assessed against defendant. Thus, there is no prejudice against defendant, should this court proceed to render a decision on plaintiff's motion for summary judgment without the joinder of the dental facility.

Finally, in reviewing defendant's affidavit, the court notes that at no point did defendant deny receiving the credit card from plaintiff, nor does he deny that the card was charged by his dental practice. He certainly did not deny that he provided the credit card to the dental practice, rather he argues that he did not receive the credit card agreement or contract from plaintiff. As stated earlier, plaintiff only has to prove that it extended the card to defendant, and that the card was used by defendant. Plaintiff has met this burden. Defendant has not presented enough evidence to rebut plaintiff's prima facie showing of entitlement to judgment.

Accordingly, it is

ORDERED that defendant's motion to Amend caption is DENIED.

ORDERED that plaintiff have judgment against defendant in the sum of $5,270.54, without cost and disbursement.

Date: 04/24/2026

Hon. Chidi A. Eze

Civil Court Judge (NYC)