Opinion
2016–2237 S C
04-05-2018
BANK OF AMERICA, N.A., Respondent, v. Blake W. REED, Appellant.
Peska & Associates, P.C. (Adam M. Peska of counsel), for appellant. Mullooly, Jeffrey, Rooney & Flynn, LLP (Christopher Klusek of counsel), for respondent.
Peska & Associates, P.C. (Adam M. Peska of counsel), for appellant.
Mullooly, Jeffrey, Rooney & Flynn, LLP (Christopher Klusek of counsel), for respondent.
PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment is affirmed, without costs.
In this action, plaintiff seeks to recover the principal sum of $7,315.49 for breach of a revolving credit agreement and upon an account stated. Defendant answered, denying liability and asserting plaintiff's lack of standing, among other defenses. In March or April 2015, defendant served "Combined Demands," ostensibly for a verified bill of particulars and other materials. In April 2015, a paralegal in the employ of the law firm representing plaintiff responded to defendant's demands by providing defendant with a batch of documents. Upon receipt of the response, defendant neither objected to the form of plaintiff's response nor moved to compel compliance with his demand.
In May 2016, plaintiff moved for summary judgment. Plaintiff supported its motion with an affidavit by a custodian of plaintiff's business records, who annexed to her affidavit copies of documents, which she authenticated as "true and accurate," and which were sufficient to show that there was a credit card agreement, which defendant had accepted by using the credit card and making payments thereon; that defendant had breached the agreement when he had failed to make required payments (see Citibank [S.D.], N.A. v. Brown—Serulovic , 97 AD3d 522, 523 [2012] ); and that defendant had a final unpaid balance of $7,315.49. Plaintiff's custodian of records also submitted a copy of a letter dated October 1, 2014 from the Office of the Comptroller of the Currency to plaintiff's representative, with a copy of the official certificate for the merger of FIA Card Services, NA into plaintiff, Bank of America, NA. By those submissions, plaintiff established, prima facie, both its standing (see Wells Fargo Bank, N.A. v. Lewczuk , 153 AD3d 890 [2017] ) and its entitlement to judgment on its cause of action for breach of a credit card agreement (see American Express Bank, FSB v. Scali , 142 AD3d 517, 517–518 [2016] ; Citibank [S.D.], N.A. v. Brown–Serulovic , 97 AD3d at 523–524 ).
The affirmation of defense counsel, which defendant submitted in response, was not based upon personal knowledge and was of no probative value (see Target Natl. Bank v. Sokoloff , 51 Misc 3d 131[A], 2016 NY Slip Op 50406[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ), and, in any event, failed to refute any of plaintiff's substantive claims, including plaintiff's assertion of standing. To the extent that defendant argued that plaintiff's motion was premature because plaintiff had failed to respond properly to defendant's demand for a bill of particulars, we note that defendant failed to demonstrate that, during the 13–month interval between plaintiff's response to the demand and plaintiff's motion for summary judgment, he had objected to the sufficiency of plaintiff's response, moved to compel, or made any other effort to obtain compliance with his demand (see CPLR 3042 [c]; see also Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3042:7). Moreover, defendant's demands were in the nature of discovery demands, rather than for amplification of the pleadings (see Northway Eng'g v. Felix Indus. , 77 NY2d 332, 335–336 [1991] ; Flores v. New York City Hous. Auth. , 151 AD3d 695, 696 [2017] ), and, since defendant failed to demonstrate that further discovery might have led to relevant evidence, or that facts essential to oppose plaintiff's motion for summary judgment were exclusively within plaintiff's knowledge and control (see Schiff v. Sallah Law Firm, P.C. , 128 AD3d 668, 669–670 [2015] ; Marcantonio v. Picozzi , 70 AD3d 655 [2010] ), defendant's discovery demands were automatically stayed pending the determination of plaintiff's motion for summary judgment (see CPLR 3214 [b] ). We therefore conclude that the District Court properly granted plaintiff's motion for summary judgment and denied defendant's cross motion to compel plaintiff to serve a verified bill of particulars.
Accordingly, the judgment is affirmed.
GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.