AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY INC v. [And A Third-Party Action]. (2002)

Judgment, Supreme Court, New York County (Marilyn Shafer, J.), entered April 17, 2001, in favor of plaintiff credit card company and against defendant credit card holder, and bringing up for review an order, same court and Justice, entered April 10, 2001, which granted plaintiff's motion for summary judgment, unanimously affirmed, with costs.   Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

Defendant's claim that plaintiff owed him a duty to investigate his dispute with the vendor, and to refuse the vendor's charge if satisfied that plaintiff was in the right, was properly rejected for lack of evidence that plaintiff had assumed any such obligation, at least where, as stated on the back of plaintiff's billing statements and is here the case, the purchase was not made in the purchaser's home State or within 100 miles of the purchaser's mailing address.   Defendant's arguments based on consumer protection statutes are improperly raised for the first time on appeal (see, Devlin v. Video Servs. Acquisition, 188 A.D.2d 370, 591 N.Y.S.2d 775), and, in any event, lack merit.   Defendant fails to show that facts essential to opposing summary judgment might be revealed by the disclosure he seeks into plaintiff's internal policies regarding billing disputes and its fee arrangements with the vendor.