| Discover Bank v Williamson |
| 2007 NY Slip Op 50231(U) [14 Misc 3d 136(A)] |
| Decided on February 2, 2007 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered on March 13, 2006. The order, insofar as appealed from, upon granting plaintiff's motion for renewal, denied plaintiff's motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
In this action for breach of a credit card agreement and an account stated, the court below, upon granting plaintiff's motion for renewal, denied plaintiff's motion for summary judgment on the ground that the supporting affidavit was not in conformity with CPLR 2309 (c). However, defendant waived her claim that the affidavit by A. Hale, notarized by an out-of-state notary public, did not comply with CPLR 2309 (c) by failing to raise the issue in her opposing papers (see Sparaco v Sparaco, 309 AD2d 1029, 1031 [2003]), and, thus, the court below should have decided plaintiff's motion for summary judgment on the merits.
Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on its first cause of action alleging a breach of contract since plaintiff did not provide proof itemizing the various purchases defendant allegedly made with her credit card (see Direct Merchants Credit Card Bank v Lazareva, 10 Misc 3d 128[A], 2005 NY Slip Op 51912[U] [App Term, 2d & 11th Jud Dists]). In addition, plaintiff failed to establish, prima facie, its cause of action for an account stated since the affidavit of plaintiff's account manager did not demonstrate that plaintiff mailed defendant a statement of account and that defendant retained such a statement for an unreasonable period of time without objecting thereto (see Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993]; see generally Citibank [S.D.] v Jones, 272 AD2d 815 [2000]). Accordingly, plaintiff's motion failed to shift the burden to defendant. In view of the foregoing, we
need not consider the sufficiency of defendant's opposition papers (Winegrad v New York Univ. [*2]Med. Ctr., 64 NY2d 851, 853 [1985]).
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: February 2, 2007