NA v. Jill A. Feldmann, Defendant. (2025)

Upon the foregoing papers, it is ORDERED that this Motion for summary judgment is GRANTED.

The following papers were read and considered on this motion for summary judgment:

Notice of Motion—affirmation—exhibits, Docket Numbers 9-17

Answering affirmation—exhibits, Docket Numbers 20-22

Reply affirmation, Docket Number 23

PROCEDURAL BACKGROUND

This complaint sounds in breach in contract whereby Plaintiff Bank of America allegedly issued a credit card to Defendant JILL A. FELDMANN. Plaintiff claims that the Defendant utilized the card to purchase goods and services and did render payments over time. Plaintiff claims that Defendant made her last payment on December 22, 2019. Thereafter Plaintiff continued to mail billing statements to the Defendant until on or about July 31, 2023, according to the complaint. Thereafter $15,667,96 was charged off and the instant action followed.

Defendant served an answer where she denied the allegations but did not assert any affirmative defenses. The court notes that it is signed by a lawyer with an Oklahoma law firm and Oklahoma address and phone number and no reference to admission to New York or a bona fide New York office. Plaintiff now moves for summary judgment.

SUMMARY JUDGMENT STANDARD

The legal issue is straightforward: Has the Plaintiff satisfied its burden of proof on a motion for summary judgment? To do so, the factual record must reach the level of proof in favor of plaintiff to eliminate all material questions of fact that there was an agreement to extend credit, that Defendant accepted advances of the available credit and that Defendant failed to fulfill her agreed upon payment obligations, vis-a-vis a threshold of proof showing plaintiff's prima facie entitlement to judgment as a matter of law with sufficient evidence in admissible form to eliminate all questions of material fact in its favor. Zuckerman v. New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Winegrad v New York Univ. Med. Center, 64 NY2d 851; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395. In sum, "[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853)." Alvarez at 324. The adequacy of the prima facie proof is viewed against the legal benefit given to the party against whom or which judgment is sought to be rendered against. Upon viewing the facts in the light most favorable to the nonmoving party, if any material issue of fact, or a credibility assessment of the conflicting witness testimony is in play and open to being heard and determined by the finder of fact at trial, the motion will fail. Vega v. Restani Constr. Corp., 18 NY3d 499 (2012); Thygesen v. North Bailey Volunteer Fire Company, Inc., 151 AD3d 1708 (4th Dept. 2017).

Plaintiff submits an affirmation of Victoria White, who is a custodian of records for Plaintiff. She testified that Bank of America is successor in interest to FIA Card Services. Plaintiff also submits the credit card agreement and several changes subsequent changes to it, an amendment, and numerous statements.

Plaintiff's submission satisfies a prima facie case for summary judgment motion to be granted. See Bank of America v Neroni, 226 AD3d 1273 (Third Dept. 2024). The burden shifts to Defendant to show the court whether an issue of fact exists to deny the motion.

The opposing attorney affirmation is signed by an attorney who is associated with a law firm in Oklahoma and does not indicate that the law firm has a New York office. See New York Judiciary Law § 470 and Schoenefeld v State, 25 NY3d 22 (2015). In addition, the attorney affirmation in opposition does not state that she is an attorney admitted in New York nor that she affirms or swears under penalty of perjury. The court will not consider the attorney affirmation.

Defendant submitted an affirmation in which she claims that Plaintiff never mailed the statements to her. However, defendant does not aver that the address on the statements is not where she resides. She is silent as to whether she accessed statements by electronic mail or on Plaintiff's website. Defendant does not dispute that part of the statements that indicate she made partial payments over time, nor does she deny that she made the purchases listed on the statements.

Defendant states in her affidavit that she does not owe the amount alleged in the complaint. However, she does not state which purchases she did not make. On page 38 of Document 13, the statement contains billing rights and details the method by which an account holder may dispute a charge and to do so within 60 days, but Defendant does not provide any documents to show that she disputed charges on the statements.

Defendant claims that the agreement does not contain her signature. However, courts have held consistently that even in "the absence of an underlying agreement, if established, does not relieve the defendant of [her] obligation to pay for goods and services received. Citibank (S.D.) N.A. v Roberts, 304 AD2d 901 (Third Dept. 2003).

DECISION

Based on the foregoing, the court GRANTS Plaintiff's Motion for Summary Judgment.

Dated: March 17, 2025

JOHN J. DELMONTE, J.S.C.

John J. DelMonte, J.