Opinion
2005-308 S C.
Decided February 3, 2006.
Appeal from an order of the District Court of Suffolk County, Fourth District (C. Steven Hackeling, J.), entered December 16, 2004. The order, insofar as appealed from as limited by defendant's brief, granted plaintiff's motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
Plaintiff instituted this action to recover the outstanding balance due on a credit card issued to defendant. The first cause of action alleged a default in payment pursuant to the agreement. The second cause of action was based on an account stated. The court below granted plaintiff's motion for summary judgment.
Plaintiff demonstrated its prima facie entitlement to judgment as a matter of law upon its motion for summary judgment on the cause of action for breach of the credit card agreement ( MBNA Am. Bank v. Paradise, 285 AD2d 586). Furthermore, defendant admits that he used the credit card. This is sufficient evidence to establish that he assented to the terms and conditions of the credit card agreement ( see Bower v. Gateway 2000, Inc., 246 AD2d 246). Plaintiff, a national bank, may charge the interest rate on unpaid balances that is allowed in the state of its incorporation even though said interest rate may be higher than what is permitted in the state where the cardholder resides ( see 12 USC § 85; Smiley v. Citibank [SD], 517 US 735; Marquette Nat. Bank of Minneapolis v. First Omaha Service Corp., 439 US 299). Defendant failed to establish a triable issue of fact in this case since he merely alleged in his opposition papers that the interest rate charged by plaintiff exceeded the rate permitted in New York where he resides. Defendant neither identified the plaintiff's state of incorporation nor established that the interest rate charged by plaintiff exceeded the rate allowed in plaintiff's state of incorporation. Consequently, plaintiff's motion for summary judgment was properly granted.
In addition, we find that plaintiff established an account stated between the parties ( see Citibank [SD] v. Jones, 272 AD2d 815) and that no material issues of fact exist with respect thereto.