Citibank, N.A., Respondent, v. Kevin Miller, Appellant. (2025)

ORDERED that the judgment is reversed, without costs, the order entered May 19, 2023 is vacated, and plaintiff's motion for summary judgment is denied.

In this action, plaintiff seeks to recover the principal sum of $4,058.52, alleging breach of a credit card agreement. After defendant submitted an answer denying liability, plaintiff moved for summary judgment on its complaint. Defendant opposed plaintiff's motion. In an order entered May 19, 2023, the District Court (Stephen L. Ukeiley, J.) granted plaintiff's motion. Defendant's appeal from the order is deemed to be from a judgment entered July 11, 2023 awarding plaintiff the principal sum of $4,058.52 pursuant to the order (see CPLR 5501 [c]).

The summary judgment motion was supported by an affidavit of plaintiff's document control officer, who stated that she had personal knowledge of and access to the account information and records concerning defendant's credit card account with plaintiff. She asserted that the account information reflected charges that had been "made on the account to purchase goods and services and/or obtain cash advances," that defendant had agreed to the terms and conditions of the account by using the credit card, and that defendant's account "is subject to written terms and conditions, as amended from time to time."

On a cause of action for breach of contract in an action to recover the outstanding balance due on a credit card, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by tendering evidence that there was a credit card agreement, which the defendant accepted by using the credit card and making payments thereon, and that the agreement was breached when the defendant failed to make required payments (see American Express Bank, FSB v Scali, 142 AD3d 517, 517-518 [2016]; accord Citibank [South Dakota], N.A. v Keskin, 121 AD3d 635, 636 [2014]; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 523-524 [2012]; Bank of Am., N.A. v Reed, 59 Misc 3d 133[A], 2018 NY Slip Op 50478[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Plaintiff made such a showing. However, where, as here, a plaintiff alleges that the account's terms and conditions are "as amended from time to time," to establish its prima facie entitlement to judgment as a matter of law on its cause of action for breach of contract, the plaintiff must demonstrate that the amendments to the credit card agreement were mailed to the defendant (Bank of Am., N.A. v Ball, 188 AD3d 974, 975 [2020]; see also American Express Natl. Bank v Saadati, 77 Misc 3d 126[A], 2022 NY Slip Op 51103[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). Brant failed to attest to personal knowledge that amendments to the cardholder agreement, if any, had been mailed to defendant or to a standard office practice and procedure designed to ensure that any such amendments had been properly addressed and mailed to defendant (see Bank of Am., N.A. v Ball, 188 AD3d at 975; see also American Express Natl. Bank v Saadati, 2022 NY Slip Op 51103[U], *2). We therefore conclude that plaintiff failed to establish its prima facie entitlement to judgment against defendant as a matter of law.

We reach no other issue.

Accordingly, the judgment is reversed, the order entered May 19, 2023 is vacated, and plaintiff's motion for summary judgment is denied.

GARGUILO, P.J., WALSH and CONWAY, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: June 5, 2025