Opinion
Index No. CV-013514-20
08-26-2022
Bank of America, N.A., Plaintiff, v. Carlos Figueroa, Defendant.
Rubin & Rothman, LLC, by Krista M. Rose, Esq., for Plaintiff Legal Services Plan - Local 237, by Leon F. Dawson, Esq., for Defendant
Unpublished Opinion
Rubin & Rothman, LLC, by Krista M. Rose, Esq., for Plaintiff
Legal Services Plan - Local 237, by Leon F. Dawson, Esq., for Defendant
HON. ASHLEE CRAWFORD, J.C.C.
Recitation as Required by CPLR §2219(a): The following papers were read on this Motion
Papers Numbered
Plaintiff's Notice of Motion, Affirmation in Support, and Exhibit 1
Defendant's Affirmation and Affidavit in Opposition 2
Plaintiff's Affirmation in Reply, and Exhibit 3
Plaintiff Bank of America, N.A. asserts a single claim against defendant Carlos Figueroa for breach of a revolving credit agreement, based on defendant's alleged non-payment of $5,310.57 in credit card charges. Defendant answered the complaint, asserting affirmative defenses of, inter alia, failure to state a claim and payment of the debt. Plaintiff now moves pursuant to CPLR § 3212 for summary judgment on its claim. Defendant opposes.
A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 231 [1978]).
To prevail on a claim for breach of contract, a plaintiff must prove the existence of a contract, plaintiff's performance, defendant's breach, and resulting damages (Second Source Funding, LLC v Yellowstone Capital, LLC, 144 A.D.3d 445, 445-46 [1st Dept 2016]). Here, plaintiff submits in support of its prima facie case the affirmation of Sherri Griffin, a custodian of records and "authorized officer" for plaintiff, who bases her sworn statement on her personal review of plaintiff's business records (Ex. D to Rose Affirm. at ¶ 1). Griffin states that, by virtue of her position with plaintiff, she has personal knowledge of plaintiff's processes and procedures for creating and maintaining its business records and delivering to customers monthly billing statements and the terms and conditions of their accounts (id. at ¶¶ 1, 5). She further attests that the business records she reviewed were made in the regular course of plaintiff's business; it was plaintiff's regular course of business to make the business records; and the records were made at or near the time of the events at issue (id. at ¶ 1).
Griffin maintains in her affidavit that defendant opened a credit account with plaintiff on May 20, 2016, used the account in accordance with the governing customer agreement, and breached the customer agreement by failing to make required payments (id. at ¶ 3). Defendant's last payment, according to Griffin, was made on or about August 31, 2019 in the sum of $200.00, after which the account was charged off on December 31, 2019 (id.). Attached as exhibit 1 to Griffin's affidavit are copies of the parties' credit card agreement (Support at pp. 28-42); and account statements from December 2016 through December 2019, reflecting detailed charges, payments, ongoing past due amounts, and a final past due amount of $5,310.57 in December 2019 (id. at 44-215). Plaintiff contends that the foregoing proof establishes its entitlement to judgment as a matter of law.
Defendant argues that summary judgment must be denied, because plaintiff has not met its prima facie burden for several reasons. First, he challenges Griffin's affidavit, arguing that it looks likes it is "robo-signed" and does not reflect how Griffin is familiar with plaintiff's business practices, or how plaintiff produces or maintains its business records. Defendant further challenges Griffin's affidavit on the ground that it was signed in North Carolina and does not include a certificate of conformity as required under CPLR § 2309(c).
Defendant's brief erroneously states that Griffin's affidavit was signed in Minnesota.
Defendant's arguments concerning Griffin's affidavit are misplaced. The factual allegations set forth in the affidavit are premised on personal knowledge and establish a sufficient basis for the admission of the credit agreement and account statements under the business records exception to the hearsay rule (MBNA America Bank, NA v Straub, 12 Misc.3d 963, 967 [Civil Ct, NY Co 2006]["Where the petitioner is the issuer of the credit card, a simple affidavit of a person with personal knowledge may present the relevant documents and supporting proof"]; CPLR § 4518[a]; cf. JPMorgan Chase Bank, N.A. v Clancy, 117 A.D.3d 472, 472-73 [1st Dept 2014]). Moreover, the lack of certificate of conformity attached to Griffin's notarized affidavit is not a fatal defect, as the oath was duly given (Wallace v Tri-State Assembly, LLC, 201 A.D.3d 65, 67 [1st Dept 2021], lv denied 38 N.Y.3d 906 [2022]; Wager Estate of Cordaro v Rao, 178 A.D.3d 434, 435-46 [1st Dept 2019]; Matapos Technology Ltd. v Compania Andina de Comerico Ltda, 68 A.D.3d 672, 673 [1st Dept 2009]). In any event, plaintiff submitted with its reply papers a certificate of conformity for the notary public who notarized Griffin's affidavit, which certificate the Court accepts and gives nunc pro tunc effect to February 7, 2022, when Griffin's affidavit was notarized (id.).
Defendant next argues that plaintiff has not met its prima facie burden, because the account statements are not self-authenticating. Binding precedent clearly proves defendant wrong on this score (Capital One Bank (USA) v Koralik, 51 Misc.3d 74, 76-77 [App Term, 1st Dept 2016]["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"]; see also Portfolio Recovery Assoc., LLC v Lall, 127 A.D.3d 576 [1st Dept 2015]; Merrill Lynch Bus. Fin. Servs. Inc. v Tratoros Constr., Inc., 30 A.D.3d 336, 337 [1st Dept 2006], lv denied 7 N.Y.3d 715 [2006]; Midland Funding, LLC v David, 66 Misc.3d 1216 [A], *5 [Civil Ct, Bronx Co 2020]["bank and credit card account statements are self-authenticating"]). For the reasons discussed, the Court finds that plaintiff has proved its prima facie case on summary judgment.
As to defendant's burden, defendant states upon information and belief in his affidavit that there are issues of fact concerning the correct amount he owes plaintiff, and whether plaintiff properly credited his payments and calculated interest. The Court finds defendant's conclusory and unsubstantiated assertions insufficient to overcome summary judgment (Zuckerman v City of New York, 49 N.Y.2d at 562). In the three (3) years of account statements submitted by plaintiff, defendant would have the details necessary to challenge plaintiff's claim with specificity, but does not do so. He fails to identify a single payment not credited or interest miscalculated. Also notable, defendant does not deny he made the charges to the account in the first instance, or that he breached the credit agreement by failing to make payments when due. Accordingly, defendant has failed to identify a triable issue of material fact to preclude summary judgment, and summary judgment is granted for plaintiff (Capital One Bank (USA), N.A. v Cuesta, 63 Misc.3d 1219 [A], *1-3 [Civil Ct, Bronx Co. 2019]).
Based upon all of the foregoing, it is hereby
ORDERED that plaintiff's summary judgment motion is granted, and the clerk is directed to enter judgment in favor of plaintiff Bank of America, N.A., and against defendant Carlos Figueroa, in the sum of $5,310.57, plus disbursements.
This constitutes the decision and order of the Court.