SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF MONTGOMERY
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`JPMORGAN CHASE BANK, N.A.,
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`Plaintiff,
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`- against -
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`MS DIANE L COMPANI,
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`Defendant.
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` INDEX NO. EF2021-3
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`FILED: MONTGOMERY COUNTY CLERK 09/17/2021 05:04 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. EF2021-3
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`RECEIVED NYSCEF: 09/17/2021
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`File No. 1374031
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` AFFIRMATION IN SUPPORT
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`NATALIE DONALDSON, an attorney at law duly admitted to
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`practice in the State of New York, an associate of the firm of
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`RUBIN & ROTHMAN, LLC, attorneys of record for Plaintiff, hereby
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`affirms the following to be true under penalty of perjury:
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`1.
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`This affirmation is submitted in support of the instant
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`application of Plaintiff for an Order pursuant to CPLR §3212,
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`granting summary judgment to Plaintiff as against Defendant MS
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`DIANE L COMPANI (hereinafter “Defendant”) for the breach and
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`default upon a revolving credit agreement entered into between
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`Plaintiff and Defendant.
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`2.
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`As is set forth in the annexed affidavit of Amy Wingo
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`(“Wingo Aff.”), Plaintiff seeks recovery of money due on a credit
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`card account. Plaintiff’s affiant sets forth she is employed by
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`Plaintiff as an Authorized Signing Officer. In this capacity, her
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`employment duties include reviewing Plaintiff’s records and
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`specifically those records for accounts in default and in
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`litigation.
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`1 of 8
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`FILED: MONTGOMERY COUNTY CLERK 09/17/2021 05:04 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. EF2021-3
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`RECEIVED NYSCEF: 09/17/2021
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`3.
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`This action was commenced by service of a Summons and
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`Complaint upon Defendant, a copy of which is attached to this
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`affirmation (“Donaldson Affirmation”) as Exhibit “E”.
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`4.
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`Defendant appeared in this action by service of an answer
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`by way of attorney, a copy of which is annexed to the Donaldson
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`Affirmation as Exhibit “F”. Defendant’s answer is bereft of any
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`factual details that support a meritorious defense to this action.
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`The court administratively reviewed the action and approved it for
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`a default judgment, however, in good faith we are treating the
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`answer as if it was timely filed with the court.
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`5.
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`The facts supporting Plaintiff’s claim and the balance
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`presently due are set forth in Plaintiff’s affidavit and the
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`exhibits.
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`6.
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`In support of its motion for summary judgment, Plaintiff
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`submits Defendant’s account statements for the period of August
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`28, 2017 to closing date August 27, 2020 in which the balance due
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`is the sum of damages demanded in the complaint - $34,442.99 (See
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`Wingo Aff., Exhibit “D”).
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`7.
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`The monthly account statements set forth the activity on
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`the account, including, payments, purchases, charges and credits,
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`and the monthly amount due. These statements also reflect the
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`Defendant’s eventual failure to pay the minimum monthly amount due
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`and Defendant’s breach of the Cardmember Agreement.
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`FILED: MONTGOMERY COUNTY CLERK 09/17/2021 05:04 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. EF2021-3
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`RECEIVED NYSCEF: 09/17/2021
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`8.
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`The Cardmember Agreement (Wingo Aff., Exhibit “B”) sets
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`forth the terms of the contract, including the annual percentage
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`rates, penalty fees and how the minimum monthly amount due is
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`calculated (See Wingo Aff., Exhibit “B”, Page 6). The Cardmember
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`Agreement also includes the default clause found on Page 4, which
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`sets forth the subject account would be deemed in default if the
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`consumer failed to pay at least the minimum monthly amount due,
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`exceeded the credit limit, or failed to comply with other
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`provisions of the Cardmember Agreement. Additionally, annexed
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`hereto with the Wingo Aff. as Exhibit “A” is a copy of the
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`electronic record of Defendant’s credit card application submitted
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`to Plaintiff at the time she applied for the subject account.
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`9.
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`Pursuant to the Cardmember Agreement, the consumer’s
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`default requires payment in full of the unpaid balance immediately
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`and expressly allows the creditor to begin collection activities
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`and to enforce its rights under the agreement.
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`10. The monthly account statements, which have been redacted
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`so as to comply with N.Y. Ct. Rule § 214.12(1) to protect
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`Defendant’s confidential information, support Plaintiff’s cause of
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`action.
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`11. Courts in the First Department have held that monthly
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`credit card billing statements are self-authenticating. See
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`Portfolio Recovery Assoc., LLC v. Lall, 127 AD3d 576 (1st Dept
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`FILED: MONTGOMERY COUNTY CLERK 09/17/2021 05:04 PM
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`INDEX NO. EF2021-3
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`2015). Citing Portfolio, the First Appellate Term held in Capital
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`One Bank (USA) v. Koralik, 2016 WL 635774 *1:
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`“The statements of Defendant’s credit card account,
`which referenced, inter alia, Defendant’s name, address,
`account number, any transaction for the relevant period,
`the balance owed and the payments received, were self-
`authenticating”.
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`12. In support of the instant motion, Plaintiff annexes
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`Defendant’s monthly account statements for a period of three years.
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`In Citibank (South Dakota), N.A. v. Cutler, 112 A.D.3d 573, 976
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`N.Y.S.2d 196 (2nd Dept 2013) the court held that the affidavit of
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`the plaintiff’s document control officer and less than two years
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`of billing statements attached as exhibits was sufficient to lay
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`the prima facie proof necessary for an award of summary judgment:
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`“…in support of its motion for summary judgment the
`Plaintiff submitted monthly billing statements from
`January 2007 through March 2008, and an affidavit from
`a document control officer who averred that the billing
`statements were sent to the Defendant at his home
`address, that the Defendant accepted and retained those
`statements without objection, and that he made partial
`payments on the account until on or about December 2007
`when payments ceased. This evidence was sufficient to
`establish the Plaintiff’s entitlement to judgment as a
`matter of law on the cause of action for an account
`stated…”
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`13. This honorable court must determine whether there is a
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`genuine issue of material fact in this matter. If not, Plaintiff
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`is entitled to judgment as a matter of law. In Citibank (South
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`Dakota) N.A. v. Keskin, 121 A.D.3d 635, 993 N.Y.S.2d 343, 344 (2nd
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`Dept 2014) it was determined that the plaintiff was entitled to
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`FILED: MONTGOMERY COUNTY CLERK 09/17/2021 05:04 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. EF2021-3
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`RECEIVED NYSCEF: 09/17/2021
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`judgment as a matter of law for both a breach of contract cause of
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`action and an account stated cause of action. That court provided
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`the following explanation:
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`“The Plaintiff made a prima facie showing of its
`entitlement to judgment as a matter of law on its cause
`of action to recover damages for breach of contract by
`tendering sufficient evidence that there was an
`agreement, which the Defendant accepted by his use of a
`certain credit card issued by the Plaintiff and payments
`made thereon, and which was breached by the Defendant
`when he failed to make the required payments (see
`Citibank [S.D.], N.A. v. Brown–Serulovic, 97 A.D.3d 522,
`523–524, 948 N.Y.S.2d 331; Citibank [S.D.] N.A. v.
`Sablic, 55 A.D.3d 651, 652, 865 N.Y.S.2d 649; Feder v.
`Fortunoff, Inc., 114 A.D.2d 399, 399, 494 N.Y.S.2d 42).
`The Plaintiff also established its prima facie
`entitlement to judgment as a matter of law on its cause
`of action to recover on an account stated by tendering
`sufficient evidence that it generated account statements
`for the Defendant in the regular course of business,
`that it mailed those statements to the Defendant on a
`monthly basis, and that the Defendant accepted and
`retained these statements for a reasonable period of
`time without objection, and made partial payments
`thereon (see American Express Centurion Bank v. Gabay,
`94 A.D.3d 795, 795, 941 N.Y.S.2d 863; Landa v. Blocker,
`87 A.D.3d 719, 721, 928 N.Y.S.2d 779; LD Exch. v. Orion
`Telecom. Corp., 302 A.D.2d 565, 565, 755 N.Y.S.2d 630;
`Jovee Contr. Corp. v. AIA Envtl. Corp., 283 A.D.2d 398,
`400, 724 N.Y.S.2d 455).”
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`14. As to the question of whether an offer and acceptance of
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`an agreement exists, the court in Eze v. JP Morgan Chase Bank, NA,
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`2010 WL 3189813 (E.D.N.Y.) declared:
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`“’The issuance of a credit card constitutes an
`offer of credit, and the use of the card constitutes
`acceptance of the offer. The terms of the contract are
`the credit card agreement. A contract will be
`interpreted in accordance with the intent of the parties
`as expressed in the language of the agreement.’ (citing
`Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 750
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`INDEX NO. EF2021-3
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`N.Y.S.2d 565, 780 N.E.2d 166 (2002); Katina, Inc. v.
`Famiglietti, 306 A.D.2d 440, 761 N.Y.S.2d 327 (2d Dep't
`2003); Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 676
`N.Y.S.2d 569 (1st Dep't 1998); Feder v. Fortunoff, Inc.,
`114 A.D.2d 399, 494 N.Y.S.2d 42 (2d Dep't 1985)));
`Anonymous v. JP Morgan Chase & Co., No. 05-CV-2442, 2005
`U.S. Dist. LEXIS 26083, at *9-*10, 2005 WL 2861589
`(S.D.N.Y. Oct. 31, 2005) (‘Using a credit card and making
`payments to the credit provider binds the cardholder to
`the terms and conditions of card use.’ (citing Grasso v.
`First USA Bank, 713 A.2d 304, 309 (Del.Super.Ct.1998));
`In re Carlin, No. 88-11689, 2009 Bankr.LEXIS 725, at *6
`(Bankr.S.D.N.Y. Feb. 10, 2009) (‘A credit card user
`implicitly agrees to the terms of use whenever he uses
`the card.’ (citing Anonymous, 2005 U.S. Dist. LEXIS
`26083, at *9-10)); see also Citibank (S.D.) N.A. v.
`Roberts, 304 A.D.2d 901, 902, 757 N.Y.S.2d 365, 366 (3d
`Dep't 2003) (‘Plaintiff [bank] met its initial burden on
`the [summary judgment] motion by presenting proof
`establishing, among other things, the existence of the
`agreement between the parties, issuance of the credit
`cards at Defendant's address, use of the credit cards,
`retention of the monthly statements and payments on the
`account by Defendant...’).
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`15. Likewise, the court in FIA Card Services, N.A. v.
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`DiLorenzo, 22 Misc.3d 1127(A), 881 N.Y.S.2d 363, 2009 WL 483822
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`(N.Y.Dist.Ct.)stated:
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`“The relationship between the issuer of a credit card
`and the holder and user of the credit card is
`contractual. Citibank (South Dakota) N.A. v. Sablic, 55
`A.D.3d 651 (2nd Dept 2008). The issuance of a credit
`card constitutes an offer of credit. The use of the
`card constitutes acceptance of the offer. Feder v.
`Fortunoff, Inc., 114 A.D.2d 399 (2nd Dept 1985); and
`Empire National Bank v. Monahan, 82 Misc.2d 808(Co.Ct.
`Rockland Co. 1975). The terms of the contract are the
`credit card agreement. Brower v. Gateway 200 Inc., 246
`A.D.2d 246 (1st Dept. 1998).”
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`16. In the instant case, Plaintiff issued a credit card to
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`Defendant, which constitutes an offer of credit. Defendant’s use
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`FILED: MONTGOMERY COUNTY CLERK 09/17/2021 05:04 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. EF2021-3
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`RECEIVED NYSCEF: 09/17/2021
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`of the credit card, as reflected in the monthly account statements,
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`constitutes the acceptance of the offer. This offer and acceptance
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`establishes an agreement between the parties, and the terms of
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`such are set forth in the attached Cardmember Agreement.
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`17. In sum, Plaintiff in this case has provided evidence of
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`an agreement, acceptance of an agreement, Defendant’s failure to
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`adhere to the terms of the agreement, monthly account statements
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`generated and issued in the regular course of business, and
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`Defendant’s partial payments.
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`18. Thus, Plaintiff is entitled to $34,442.99, the balance
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`due on the account as set forth in the last monthly account
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`statement with a closing date of August 27, 2020, no part of which
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`has been paid although duly demanded.
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`19. It is respectfully submitted that Plaintiff’s affidavit
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`establishes Plaintiff’s prima facie case and entitlement to
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`summary judgment as a matter of law.
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`20. It is now for the Defendant to come forward with
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`evidentiary, non-conclusory proof of the existence of a triable
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`issue of fact as conclusory allegations will not suffice. S.J.
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`Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338 (1974).
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`In the absence of such a showing, summary judgment must be granted
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`to the plaintiff. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d
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`131 (1974); see also, CPLR §3212.
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`FILED: MONTGOMERY COUNTY CLERK 09/17/2021 05:04 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. EF2021-3
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`RECEIVED NYSCEF: 09/17/2021
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`21. Upon information and belief, there is no defense to
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`Plaintiff’s meritorious cause of action.
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`22. Plaintiff has made no previous application for the
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`relief sought herein.
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`WHEREFORE, Plaintiff respectfully requests an order granting
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`summary judgment against Defendant for the amount sought in the
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`summons and complaint, and for such other and further relief as
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`the court deems just and proper.
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`Dated: Islandia, New York
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`September 17, 2021
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`_____________________________
` NATALIE DONALDSON, ESQ.
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