AMERICAN EXPRESS NATIONAL BANK v. ZELKOVITZ (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and on an account stated, the defendants appeal from two orders of the Supreme Court, Kings County (Lawrence Knipel, J.), both dated August 18, 2023.  The first order granted those branches of the plaintiff's motion which were for summary judgment on the causes of action to recover damages for breach of contract and on an account stated.  The second order, insofar as appealed from, granted the same relief to the plaintiff and directed the clerk of the court to enter a judgment in favor of the plaintiff and against the defendants in the principal sum of $500,404.37.

ORDERED that the first order is affirmed;  and it is further,

ORDERED that the second order is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In September 2019, the plaintiff commenced this action, inter alia, to recover damages for breach of contract and on an account stated, alleging that the defendants failed to pay the outstanding balance due on a credit card issued by the plaintiff.  In June 2022, the plaintiff moved, among other things, for summary judgment on those causes of action.  In an order dated August 18, 2023, the Supreme Court granted those branches of the plaintiff's motion.  In a second order also dated August 18, 2023, the court, among other things, granted the same relief to the plaintiff and directed the clerk of the court to enter a judgment in favor of the plaintiff and against the defendants in the principal sum of $500,404.37.  The defendants appeal.

Contrary to the defendants' contention, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover damages for breach of contract (see American Express Natl. Bank v. Hoffman, 210 A.D.3d 1039, 1039–1040, 178 N.Y.S.3d 776).  “The plaintiff tendered sufficient evidence that there was a credit card agreement, which the defendant[s] accepted by using the credit card and making payments thereon, and that the agreement was breached by the defendant[s] when [they] failed to make required payments” (American Express Bank, FSB v. Scali, 142 A.D.3d 517, 517–518, 36 N.Y.S.3d 220;  see American Express Natl. Bank v. Hoffman, 210 A.D.3d at 1039–1040, 178 N.Y.S.3d 776;  Citibank [South Dakota] N.A. v. Sablic, 55 A.D.3d 651, 652, 865 N.Y.S.2d 649).  In opposition, the defendants failed to raise a triable issue of fact (see American Express Bank, FSB v. Scali, 142 A.D.3d at 518, 36 N.Y.S.3d 220).  Under the circumstances presented, the defendants' objections to the accuracy of certain charges, and the evidence submitted in support thereof, were insufficient to raise a triable issue of fact (see American Express Natl. Bank v. Hoffman, 210 A.D.3d at 1040, 178 N.Y.S.3d 776;  Laskaratos v. Bay Ridge Hoyt Lender, LLC, 185 A.D.3d 908, 910, 128 N.Y.S.3d 544;  cf.  Citibank [S.D.], N.A. v. Brown–Serulovic, 97 A.D.3d 522, 524, 948 N.Y.S.2d 331).

The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover on an account stated (see American Express Bank, FSB v. Scali, 142 A.D.3d at 518, 36 N.Y.S.3d 220).  The plaintiff submitted “evidence that it 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” (American Express Centurion Bank v. Gabay, 94 A.D.3d 795, 795, 941 N.Y.S.2d 863;  see Langione, Catterson & LoFrumento, LLP v. Schael, 148 A.D.3d 797, 797, 47 N.Y.S.3d 913;  cf.  American Express Centurion Bank v. Cutler, 81 A.D.3d 761, 762, 916 N.Y.S.2d 622).  In opposition, the defendants failed to raise a triable issue of fact (see American Express Centurion Bank v. Gabay, 94 A.D.3d at 795, 941 N.Y.S.2d 863).

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the causes of action to recover damages for breach of contract and on an account stated and, thereupon, directed the clerk of the court to enter a judgment in favor of the plaintiff and against the defendants in the principal sum of $500,404.37.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

DILLON, J.P., WOOTEN, VOUTSINAS and VENTURA, JJ., concur.