Opinion
08-10-2016
AMERICAN EXPRESS BANK, FSB, respondent, v. Nicholas SCALI, also known as Nicholas J. Scali, etc., appellant.
Nicholas J. Scali, also known as Nicholas J. Scali, Middletown, NY, appellant pro se. Panteris & Panteris, LLP, Bayside, NY (Lauren Varrone of counsel), for respondent.
Nicholas J. Scali, also known as Nicholas J. Scali, Middletown, NY, appellant pro se.
Panteris & Panteris, LLP, Bayside, NY (Lauren Varrone of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for breach of contract and on an account stated, the defendant appeals from (1) an order of the Supreme Court, Orange County (Slobod, J.), dated March 6, 2015, which granted the plaintiff's motion for summary judgment on the complaint and denied his cross motion, in effect, for summary judgment dismissing the complaint, and (2) a judgment of the same court dated March 11, 2015, which, upon the order dated March 6, 2015, is in favor of the plaintiff and against him in the principal sum of $55,909.69.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).
In this action to recover the outstanding balance of $55,909.69 due on a credit card, the plaintiff alleged causes of action to recover damages for breach of contract and to recover on an account stated. The plaintiff moved for summary judgment on the complaint, and the defendant cross-moved, in effect, for summary judgment dismissing the complaint. The Supreme Court granted the motion and denied the cross motion, and we affirm.
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law on its cause of action to recover damages for breach of contract (see Citibank [S.D.], N.A. v. Brown–Serulovic, 97 A.D.3d 522, 523, 948 N.Y.S.2d 331 ; Citibank [South Dakota] N.A. v. Sablic, 55 A.D.3d 651, 652, 865 N.Y.S.2d 649 ). The plaintiff tendered sufficient 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 by the defendant when he failed to make required payments (see Citibank [S.D.], N.A. v. Brown–Serulovic, 97 A.D.3d at 523, 948 N.Y.S.2d 331 ; Citibank [South Dakota] N.A. v. Sablic, 55 A.D.3d at 652, 865 N.Y.S.2d 649 ; American Express Bank, FSB v. Dechon, 41 Misc.3d 1226[A], 2013 N.Y. Slip Op. 51844[U], 2013 WL 6038408 [Sup.Ct., Queens County] ). In opposition, the defendant failed to raise a triable issue of fact (cf. Citibank [S.D.], N.A. v. Brown–Serulovic, 97 A.D.3d at 523, 948 N.Y.S.2d 331 ). The defendant did not deny that the plaintiff had extended him credit, nor did he dispute the accuracy of the charges reflected in the credit card statements. Moreover, his conclusory assertions failed to rebut the presumption of proper mailing established by the plaintiff's proof, which included the credit card statements and a “cardmember agreement” reflecting the same mailing address, as well as a sworn description of the plaintiff's billing practices.
Additionally, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law on its cause of action to recover on an account stated. It demonstrated, with evidence in admissible form, that it generated statements for the defendant in the regular course of business and mailed those statements to the defendant on a monthly basis from January 2013 through July 2013, and that the defendant accepted and retained those statements without objection for a reasonable time prior to the commencement of the action (see American Express Centurion Bank v. Gabay, 94 A.D.3d 795, 795, 941 N.Y.S.2d 863 ; American Express Centurion Bank v. Williams, 24 A.D.3d 577, 578, 807 N.Y.S.2d 612 ; Citibank v. Roberts, 304 A.D.2d 901, 902, 757 N.Y.S.2d 365 ). The statements indicated an outstanding balance in the amount of $55,909.69. In opposition, the defendant failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint. For the same reasons, the court also properly denied the defendant's cross motion, in effect, for summary judgment dismissing the complaint.