American Express National Bank, Plaintiff, v. Tina Milner, Defendant. (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 were read on this motion for SUMMARY JUDGMENT.

Plaintiff, American Express National Bank, moves for summary judgment against defendant pro se Tina Milner, holder of two credit cards with plaintiff. Plaintiff's motion is granted as to the first, second, fourth and fifth causes of action.

With respect to plaintiff's breach of contract claims in its first and fourth causes of action, each relating to a different credit card held by defendant, plaintiff has shown that it performed its obligations under the contract; that defendant defaulted on her payment obligations (see NYSCEF No. 14 & 16 [agreements]; NYSCEF No. 18 & 19 [balance statements]); and that plaintiff has suffered damages as a result. (See Furia v. Furia, 116 AD2d 694, 695 [2d Dept 1986] [discussing elements of contract claim]).

Defendant contends in opposition essentially that plaintiff did not fully perform, but instead breached its contractual obligations. She asserts that she was improperly denied access to her membership rewards account, membership services to which she was assertedly entitled, and a large digital gift card; and also that she was not informed that she had lost her charging privileges due to late payments. As plaintiff correctly points out, however, the underlying card agreements grant plaintiff the power to cancel or suspend any feature of the account at its discretion, even if the account is not in default. (See NYSCEF No. 14 at 7; NYSCEF No. 16 at 7). And that plaintiff did not state in a balance statement that defendant had lost charging privileges would not free defendant of the obligation to pay charges she incurred thereafter.

Plaintiff is also entitled to relief under its account-stated claims raised in its second and fifth causes of action. An affidavit by plaintiff's custodian of records establishes that plaintiff sent at least one statement for each credit card to defendant's last-known address; and that defendant did not then object to those statements. (See NYSCEF No. 10 at ¶ 9). Defendant's failure to object to the statements constitutes an implied assent to the amount claimed by plaintiff to be owed. (See Herrick, Feinstein LLP v Stamm, 297 AD2d 477, 478 [1st Dept 2002], citing Interman Indus. Prods. v. R.S.M. Electron Power, 37 NY2d 151, 153—154 [1975].) Defendant's vague and unsubstantiated denials on this motion that she received the credit-card statements at issue are not sufficient to raise a material dispute of fact.

Lastly, plaintiff's third and sixth causes of action assert claims for unjust enrichment (one claim for each credit card). These claims merely duplicate plaintiff's contract claims relating to the two cards. The claims are therefore subject to dismissal. (See Clark-Fitzpatrick, Inc. v Long Is. R. Co., 70 NY2d 382 [1987]).

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment is denied as to its third and sixth causes of action, and summary judgment dismissing those claims is granted to defendant as the nonmoving party; and it is further

ORDERED that plaintiff's motion for summary judgment is granted as to its first, second, fourth, and fifth causes of action and plaintiff is awarded a money judgment against defendant for $44,865.77, with interest running at the statutory rate from the intermediate date of April 15, 2022, plus costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant and on the office of the County Clerk, which shall enter judgment accordingly.

Dated: December 8, 2022

Hon. Gerald Lebovits

J.S.C.

Gerald Lebovits, J.