JP MORGAN CHASE BANK NA v. KHAN (2025)

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 $9,300.66. 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 denied.

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 insufficient to defeat a motion for summary judgment (Banco Popular N. Am. v Victory Taxi Mgmt., 1 NY3d 381 [2004]).

Now for plaintiff to recover the $9,300.66 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 American Express Nat'l Bank v Zelkovitz, 241 AD3d 1226, 1228 [2d Dept 2025]; American Express Centurion Bank v Gabay, 94 Ad3d 795, [2d Dept 2012].

Here Plaintiff submitted the affidavit of a bank officer for plaintiff for JP Morgan Chase Bank, 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. However, the affiant failed to mention that monthly statements were delivered to plaintiff by Unites States Postal Service. Accordingly, it is unnecessary to consider the sufficiency of defendant's papers in opposition. NY and Presbyterian Hosp. v Allstatse Ins. Co., 29 AD3d 547, 548 [2d Dept 2006]. Thus, plaintiff failed to establish their entitlement to summary judgment.

This constitutes the Order and Decision of the Court.

Patrick Hayes Torres, J.