Opinion
05-01-2024
AMERICAN EXPRESS NATIONAL BANK, respondent, v. Roxana BELCIU-KERNS, etc., et al., appellants.
Ralph A. Erbaio, Carmel, NY, for appellants. Zwicker & Associates, P.C., Rochester, NY (Jason Verhagen of counsel), for respondent.
Ralph A. Erbaio, Carmel, NY, for appellants.
Zwicker & Associates, P.C., Rochester, NY (Jason Verhagen of counsel), for respondent.
HECTOR D. LASALLE, P.J., JOSEPH J. MALTESE, HELEN VOUTSINAS, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Putnam County (Gina C. Capone, J.), dated December 27, 2021. The judgment, upon an order of the same court dated December 20, 2021, granting the plaintiff's motion for summary judgment on the complaint, is in favor of the plaintiff and against the defendants in the principal sum of $67,295.27.
ORDERED that the judgment is affirmed, with costs.
The plaintiff commenced this breach of contract action against the defendants to recover the outstanding balance due on a credit card issued by the plaintiff to the defendants. The plaintiff thereafter moved for summary judgment on the complaint. In an order dated December 20, 2021, the Supreme Court granted the plaintiff's motion. A judgment dated December 27, 2021, was subsequently entered upon the order. The defendants appeal.
[1] The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law with evidence that there was a credit card agreement (hereinafter the cardmember agreement), which the defendants accepted by using the credit card and making payments thereon, and that the cardmember agreement was breached by the defendants when they failed to make the required payments (see American Express Natl. Bank v. Hoffman, 210 A.D.3d 1039, 1040, 178 N.Y.S.3d 776; American Express Bank, FSB v. Scali, 142 A.D.3d 517, 517-518, 36 N.Y.S.3d 220; 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 defendants failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Brooker Engg., PLLC v. SK Trust, 219 A.D.3d 1479, 1481,196 N.Y.S.3d 512).
[2] The plaintiff's interest rate was not usurious. Since the plaintiff is a national bank headquartered in Utah, the 27.24% interest rate it charged was permissible despite the fact that it exceeded the maximum amount permitted under the laws of New York for locally chartered banks (see National Bank Act, 12 USC § 85; Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299, 313, 99 S.Ct. 540, 58 L.Ed.2d 534; Federal Deposit Ins. Corp. v. Park Lane Realty Assoc., 72 A.D.2d 788, 789, 421 N.Y.S.2d 611; Madden v. Midland Funding, LLC, 786 F.3d 246, 250 [2d Cir.]).
LASALLE, P.J., MALTESE, VOUTSINAS and LOVE, JJ., concur.