Opinion
570171/05.
Decided January 23, 2006.
Plaintiff appeals from an order of the Civil Court, New York County (Eileen A. Rakower, J.), which denied its motion for summary judgment without prejudice to the commencement of a new action.
Order (Eileen A. Rakower, J.), entered on or about December 3, 2003, reversed, and plaintiff's motion for summary judgment is granted in the principal amount of $6,588.03. The Clerk is directed to enter judgment accordingly.
PRESENT: Suarez, P.J., Davis, Gangel-Jacob, JJ
Defendant acknowledged indebtedness to plaintiff on a credit card account in the amount of $6,588.03 by submitting to plaintiff, in response to billing statements, a promissory note in that amount. Defendant's tender of the promissory note, together with her receipt and retention of plaintiff's billing statements without objection within a reasonable period of time, constituted an account stated as a matter of law ( Citibank [S.D.] v. Jones, 272 AD2d 815, lv denied 95 NY2d 764; Werner v. Nelkin, 206 AD2d 422). Nor was plaintiff obligated to take any action with respect to the promissory note. Under the credit card agreement payments were to be made by any "check, similar instrument, or automatic debit" that would be honored by the debtor's bank. The note did not meet the test of having been drawn on, or certified by, a bank ( see UCC 3-802). Plaintiff appropriately rejected defendant's tender of the promissory note and, in any event, even if retained by plaintiff, the note would not constitute evidence of payment or discharge of the debt ( Industrial Bank of Commerce v. Shapiro, 276 App Div 370, 372, affd 302 NY 566).
This constitutes the decision and order of the Court.