LLC v. CAMBA NYC MFY LLP DC (2015)

Municipal Employees Legal

Services, Lincoln Square Legal

Services, Inc., and St. Vincent de Paul

Legal Program, Inc.,

Amici Curiae.

Lincoln Square Legal Services, Inc., New York (Ian Weinstein of counsel), for Professors of Evidence at Fordham University School of Law and Albany Law School, amici curiae, and (Marcella Silverman of counsel), for CAMBA Legal Services, Inc., Legal Services NYC, MFY Legal Services, Inc., New Economy Project, Queens Volunteer Lawyers Project, Inc., The Financial Clinic, The Legal Aid Society, Schlanger & Schlanger, LLP, The Bromberg Law Office, P.C., The Law Office of Ahmad Keshavarz, DC 37 Municipal Employees Legal Services, Lincoln Square Legal Services, Inc., and St. Vincent de Paul Legal Program, Inc., amici curiae.

_

Order of the Appellate Term of the Supreme Court, First Department, entered on or about October 15, 2013, which affirmed a judgment, Civil Court, Bronx County (Mitchell J. Danziger, J.), entered April 18, 2012, after a nonjury trial, in plaintiff's favor, unanimously affirmed, without costs.

Plaintiff's proof of the underlying debt obligation was shown through defendant's testimony that he used the credit card issued by plaintiff's assignor and by the self-authenticating account statements (see Merrill Lynch Bus. Fin. Servs.   Inc. v Trataros Constr., Inc., 30 AD3d 336 [1st Dept 2006], lv denied 7 NY3d 715 [2006] ).   Evidence of the assignment of defendant's account was the affidavit of sale, which, although created by the assignor, was properly introduced as a business record through the testimony of plaintiff's employee (see Landmark Capital Invs., Inc. v Li–Shan Wang, 94 AD3d 418, 419 [1st Dept 2012] ).   Plaintiff's reliance on documents of this type was a sufficient basis on which to permit its employee to lay the foundation for the admission of the affidavit of sale;  contrary to defendant's contention, it was not necessary that there be a special relationship between plaintiff and its assignor.

We decline to consider defendant's argument, raised for the first time on appeal, that plaintiff failed to supply the best evidence of the assignment of the account.

_

CLERK