BANK OF AMERICA v. MARQUES ELKIN (2023)

ORDERED that the judgment is reversed, without costs, the order dated March 9, 2022 is vacated, the branch of plaintiff's motion seeking summary judgment on its cause of action for an account stated is denied, and the matter is remitted to the District Court for a determination of the branch of plaintiff's motion seeking summary judgment on its cause of action for breach of a credit card agreement.

In this action, plaintiff seeks to recover the principal sum of $11,409.35 based on an alleged breach of a credit card agreement and upon an account stated. Plaintiff moved for summary judgment on both causes of action and, by order dated March 9, 2022, the District Court (C. Stephen Hackeling, J.) granted the branch of plaintiff's motion seeking summary judgment on its cause of action for an account stated. A judgment was subsequently entered on September 12, 2022 awarding plaintiff the principal sum of $11,409. Defendant appeals from the judgment.

Plaintiff's summary judgment motion failed to make a prima facie showing on its cause of action for an account stated, as plaintiff did not adequately demonstrate that there was an account between the parties and that a specified balance was found to be due (see generally Citibank [S.D.] v Jones, 272 AD2d 815, 816 [2000]), and the supporting affidavit of plaintiff's custodian of records did not set forth any facts establishing which specific monthly statements were mailed to defendant (see Citibank [SD] N.A. v Goldberg, 24 Misc 3d 143[A], 2009 NY Slip Op 51735[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Moreover, that affidavit failed to allege facts showing that defendant had retained the alleged account statements for an unreasonable amount of time without objecting to them (see Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993]; Citibank [SD] N.A. v Goldberg, 2009 NY Slip Op 51735[U]; Discover Bank v Williamson, 14 Misc 3d 136[A], 2007 NY Slip Op 50231[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

We note that the District Court did not determine the branch of plaintiff's motion seeking summary judgment on its cause of action for breach of a credit card agreement.

Accordingly, the judgment is reversed, the order dated March 9, 2022 is vacated, the branch of plaintiff's motion seeking summary judgment on its cause of action for an account stated is denied, and the matter is remitted to the District Court for a determination of the branch of plaintiff's motion seeking summary judgment on its cause of action for breach of a credit card agreement.

GARGUILO, P.J., EMERSON and McCORMACK, JJ., concur.