DBA ELAN FINANCIAL SERVICES v. K. Salviejo, Defendant(s). (2026)

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

The following papers read herein: Numbered

Plaintiff's Notice of Motion, Affirmation, Memorandum of Law and Exhibits 1

Defendant's Notice of Cross-motion/Affirmation in Opposition and Exhibits 2

Plaintiff's Affirmation in Opposition to Defendant's Cross-motion 3

Defendant's Affirmation in Reply 4

II. Background

On December 18, 2024, Plaintiff commenced the instant consumer credit action against Defendant by filing a summons and complaint seeking to recover money damages in the amount of $4,934.93 together with costs and disbursements. Defendant joined the action by interposing an answer.

On July 10, 2025, Plaintiff moved pursuant to CPLR 3212 by motion for summary judgment in its favor in the amount of $4,934.93 and costs and disbursements ("Motion #1"). Defendant subsequently moved pursuant to CPLR 3211(a)(3) by cross-motion to dismiss Plaintiff's complaint, contending that Plaintiff lacked standing as (1) Plaintiff failed to provide sufficient documentation establishing its legal authority to sue; (2) there was factual inaccuracy in the affidavit of service; and (3) there was material discrepancy regarding the identity of Plaintiff as the cover letter provided by Plaintiff to Defendant along with its discovery documents bore "American Express National Bank" instead of "U.S. Bank National Association d/b/a Elan Financial Services" as the plaintiff ("Motion #2"). Further, in opposing Plaintiff's motion for summary judgment, Defendant argued that Plaintiff failed to provide a signed copy of the alleged credit card agreement.

In opposition to Defendant's cross-motion to dismiss, Plaintiff contended that (1) the doctrine of legal standing was not applicable, and even if it was, it had been waived; (2) Plaintiff had sufficiently proved service to Defendant and there was no factual inaccuracy in the affidavit of service; and (3) the error in Plaintiff's name was de minimis and did not affect Defendant's rights.

In reply, Defendant argued that Plaintiff's opposition failed to cure the defects identified in her motion to dismiss and instead relied on conclusory assertions that were unsupported by documentary evidence.

Motion #1 and Motion #2 were submitted on January 29, 2026 and subsequently assigned to this Court for determination on June 8, 2026.

III. Discussion

i. Plaintiff's motion for summary judgment

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 Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007] quoting Winegrad v New York Univ Med Center, 64 NY2d 851, 853 [1985]; Ostrov v Rozbruch, 91 AD3d 147, 152 [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 there is no defense to the cause of action or that the cause of action or defense has no merit (CPLR 3212[b]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; see also Kershaw v Hospital for Special Surgery, 114 AD3d 75, 81-82 [1st Dept 2013]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (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, 562 [1980]; Kosson v Algaze, 84 NY2d 1019 [1995]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 128-129 [2000]).

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 [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 performance pursuant to the contract, the breach of contractual obligations, and damages resulting from such breach (see Harris v Seward Park Housing Corp., 79 AD3d 425, 426, 913 N.Y.S.2d 161 [1st Dept 2010] [internal citation omitted]). The issuance of a credit card constitutes an offer of credit, and the cardholder's use of the said card constitutes acceptance of the offer (see Feder v Fortunoff, Inc., 114 AD2d 399, 399, 494 N.Y.S.2d 42 [2d Dept 1985] [internal citation omitted]).

In the case at bar, Plaintiff submitted the following in support of its prima facie case: an affirmation of procedural history; summons and complaint; affidavit of service; affidavit of service of an additional copy of the summons and complaint pursuant to CPLR 3215(g)(3)(i); Defendant's answer; memorandum of law; additional notice of summary judgment motion pursuant to CPLR 3212(j); affirmation of facts by B. Boston (hereinafter "Boston"), an authorized agent of Plaintiff; Defendant's monthly periodic account statements; and card agreement.

The Court finds the affirmation of Boston, an individual with personal knowledge of, and access to, account information and records concerning Defendant's account with Plaintiff, to be sufficient for the purposes of establishing proper business records foundation for the account statements and card agreement submitted by Plaintiff, the original creditor, as the books and records were "made in the regular course of [ ] business," and "it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (see CPLR 4518[a]; see also Matter of Leon R.R., 48 NY2d 117, 122 [1979]; see also affirmation of Boston, ¶¶ 1-3).

Based upon the submission, Defendant entered into a credit card agreement with Plaintiff, the original creditor, where Plaintiff extended to Defendant a line of credit, and Defendant received a credit account with an account number ending in 7518. Each statement included in the submission detailed Defendant's name, Defendant's address, the last four digits of Defendant's account number, the billing period, and described the account activity, stating the charges on the account, along with interest, fees, payments, credits and the amount due on the account. Such monthly statements are self-authenticating (see Portfolio Recovery Assoc., LLC v Lall, 127 AD3d 576, 576 [1st Dept 2015] citing Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336, 337 [1st Dept 2006]). The last payment made by Defendant in the amount of $125.00 was posted to the account on or about November 2, 2023 as demonstrated by the statement with the closing date of November 6, 2023. The most recent statement with the closing date of May 7, 2024, reflects that Defendant failed to make required payments to Plaintiff in the aggregate total of $4,934.93.

As such, Plaintiff 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.

ii. Defendant's cross-motion to dismiss and opposition to Plaintiff's motion for summary judgment

The Court now turns to Defendant's cross-motion to dismiss Plaintiff's complaint. "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87 [1994]). The court is to "accept the facts as alleged in the complaint as true, accord the plaintiff[ ] the benefit of every possible inference and determine only whether the facts as alleged fit within any cognizable legal theory" (see Leon, at 87; see also Amaro v Gani Realty Corp., 60 AD3d 491, 492 [1st Dept 2009]).

A motion to dismiss pursuant to CPLR 3211(a)(3) permits a party to move for dismissal on the ground that "the party asserting the cause of action has no legal capacity to sue" (see CPLR 3211[a][3]). The doctrine of legal capacity "concerns a litigant's power to appear and bring its grievance before the court [l]egal capacity to sue, or lack thereof, often depends purely on the litigant's status" (see Security Pacific National Bank v Evans, 31 AD3d 278, 279 [1st Dept 2006] [internal citation omitted]).

"While CPLR 3211(a)(3) speaks to the plaintiff's lack of 'capacity' as a basis for dismissing complaints, decisional authorities have addressed a party's lack of standing as within the scope of the same statutory subdivision" (see Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 89-90 [2d Dept 2021] [internal citations omitted]).

In the absence of standing, a plaintiff may not proceed with the action, as "[s]tanding goes to the jurisdictional basis of a court's authority to adjudicate a dispute" (see Stark v Goldberg, 297 AD2d 203, 204 [1st Dept 2002] [internal citations omitted]). The defendant bears the burden of making a prima facie showing that the plaintiff lacks standing. To defeat such a showing, the plaintiff need only raise a triable issue of fact (see DLJ Mtge. Capital v Mahadeo, 166 AD3d 512, 513 [1st Dept 2018] [internal citation omitted]).

With respect to Defendant's contention that Plaintiff failed to provide sufficient documentation establishing its legal authority to sue, the Court finds that the affidavit of Boston was sufficient for the purposes of establishing proper business records foundations for the documentation submitted by Plaintiff, the original creditor. Here, Defendant failed to proffer any documentary evidence in support of her allegation that Plaintiff lacks standing in this action. Additionally, Defendant failed to raise the issue of standing in her answer and improperly raised it for the first time in her cross-motion to dismiss. Accordingly, the branch of Defendant's cross-motion to dismiss for lack of standing pursuant to CPLR 3211(a)(3) is denied.

Although unclear, it also appears that Defendant is seeking to dismiss Plaintiff's complaint for lack of jurisdiction as there was factual inaccuracy in the affidavit of service. "A party may move for judgment dismissing one or more cause of action asserted against [her] on the ground that the court has no jurisdiction of the person of the defendant" (see CPLR 3211[a][8]). Pursuant to CPLR 308(1), personal service on a natural person can be made by delivering the summons to the defendant. It is well established that "[a]n affidavit of service constitutes prima facie evidence of proper service" (see Ocwen Loan Servicing, LLC v Ali, 180 AD3d 591, 591 [1st Dept 2020] [internal quotation marks and citation omitted]). To rebut the prima facie showing of the process server's affidavit of service, a "defendant [is] required to submit a sworn, nonconclusory denial of service or swear to specific facts" (see JP Morgan Chase Bank v Dennis, 166 AD3d 530, 531 [1st Dept 2018] [internal citations omitted]). "[T]he mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service" (see Ocwen Loan Servicing, LLC at 591 [internal quotation marks and citation omitted]).

Here, the process server personally served Defendant a copy of the summons and complaint on January 1, 2025 at 3:12PM at the address of 239 W 145th St APT 4C, New York, New York County, NY 10039 (hereinafter, "Premises") (see affidavit of service). An additional copy of the same was also mailed to the Premises on January 6, 2025 (see affidavit of service of an additional copy of the summons and complaint pursuant to CPLR 3215(g)(3)(i)). Thus, the process server's affidavit established, prima facie, that Defendant was properly served pursuant to CPLR 308(1).

In support of her cross-motion to dismiss, Defendant submitted a copy of the affidavit of service of an additional copy of the summons and complaint pursuant to CPLR 3215(g)(3)(i) to argue that the language of the affidavit was "vague and potentially misleading, as it fail[ed] to clearly state whether this was mailed or delivered in person" (see affirmation of K. Salviejo). Contrary to Defendant's contention, the Court finds that the language of the affidavit of service was clear in stating that an additional copy of the summons and complaint had been mailed pursuant to CPLR 3215(g)(3)(i) (see affidavit of service of an additional copy of the summons and complaint pursuant to CPLR 3215(g)(3)(i)). Defendant further alleged improper service in a conclusory fashion and failed to support her motion with any documentary evidence that raised an issue of fact disputing the veracity of the content of the affidavit of service. Indeed, Defendant herself acknowledged that she was personally served on January 1, 2025 at her place of residence, and that she received a mailed copy around January 10, 2025 (see affirmation of K. Salviejo), which confirms the process server's affidavit of service. Moreover, Defendant failed to raise the issue of improper service in her answer and improperly raised it for the first time in her cross-motion to dismiss. Accordingly, the branch of Defendant's cross-motion to dismiss for lack of personal jurisdiction pursuant to CPLR 3211(a)(8) is denied.

Further, Defendant alleged that there was material discrepancy regarding the identity of Plaintiff as the cover letter provided by Plaintiff to Defendant along with its discovery documents bore "American Express National Bank" instead of "U.S. Bank National Association d/b/a Elan Financial Services" as the plaintiff. Here, Defendant failed to allege as to whether such discrepancy was also found within the content of the discovery documents. Insofar as the discrepancy in the plaintiff's name was confined to the cover letter, this constitutes a de minimus error that neither affected the substance of the proceeding nor prejudiced Defendant's rights (see CPLR 2001).

As for Defendant's contention that Plaintiff failed to submit a signed copy of the alleged credit card agreement, the Court finds that even "[t]he absence of an underlying agreement, if established, would not relieve [Defendant] of [her] obligation to pay for goods and services received on credit" (see Citibank (S.D.) N.A. v Roberts, 304 AD2d 901, 902 [3rd Dept 2003]). As noted above, it is the issuance of a credit card that constitutes an offer of credit, which is accepted upon use of the card (see Feder v Fortunoff, Inc., 114 AD2d 399, 399 [2d Dept 1985] [internal citation omitted]). Subsequent breach of the agreement occurs upon failure to make required payments (see Citibank (South Dakota) N.A. v Brown-Serulovic, 97 AD3d 522, 523 [2d Dept 2012]).

Accordingly, Defendant's cross-motion to dismiss Plaintiff's complaint is denied. In addition, the Court finds that Defendant failed to raise a triable issue of fact, and thus, Plaintiff's motion for summary judgment is granted.

IV. Order

Accordingly, it is hereby:

ORDERED that Plaintiff's Motion for summary judgment is GRANTED and the clerk is directed to enter judgment in favor of Plaintiff and against Defendant in the amount of $4,934.93 together with costs and disbursements; and it is further

ORDERED that Defendant's Cross-Motion to dismiss Plaintiff's complaint is DENIED; and it is further

ORDERED that Plaintiff shall serve a copy of this Decision and Order upon Defendant with notice of entry within thirty (30) days thereof.

This constitutes the DECISION and ORDER of the Court.

DATE July 27, 2026

HON. WENDY CHANGYONG LI, J.C.C.

Wendy Changyong Li, J.