Opinion
2006-1318 N C.
Decided January 11, 2008.
Appeal from an order of the District Court of Nassau County, Second District (Norman Janowitz, J.), entered March 27, 2006. The order granted plaintiff's motion for summary judgment awarding plaintiff the principal sum of $14,930.77, in effect, dismissed the counterclaim, and denied defendant's cross motion for summary judgment.
Order modified by providing that plaintiff's motion for summary judgment on its complaint is denied; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
In this action to recover the balance due on a credit card account opened by defendant in 1996, plaintiff's motion for summary judgment should have been denied. It is well established that "[t]he proponent of a summary judgment motion 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. Center, 64 NY2d 851, 853). The affirmation of an attorney who lacks personal knowledge of the facts is of no probative value and is insufficient to support an award of summary judgment ( Warrington v Ryder Truck Rental, Inc. , 35 AD3d 455 ; see Zuckerman v City of New York, 49 NY2d 557, 563).
In the case at bar, the moving papers are only supported by an attorney's affirmation which is not based upon personal knowledge of the facts, and thus, is without probative value. The affidavit executed by an attorney management specialist for plaintiff which was submitted for the first time as part of its reply papers, may not be considered for the purpose of establishing a prima facie entitlement to summary judgment ( see Batista v Santiago , 25 AD3d 326 ; North Shore Acupuncture P.C. v State Farm Ins. Co., 14 Misc 3d 130 [A], 2006 NY Slip Op 52523[U] [App Term, 2d 11th Jud Dists]). Accordingly, plaintiff's motion for summary judgment on its complaint should have been denied.
Defendant interposed a counterclaim asserting that plaintiff violated the Fair Credit Billing Act, and cross-moved for summary judgment. Defendant alleged that plaintiff failed to reply to a billing error notice he sent to plaintiff on November 16, 2004, disputing the monthly account statements dated September 24 and October 16, 2004, and a second billing error notice he sent, dated December 14, 2004, disputing the monthly account statement dated November 24, 2004. Defendant's notices set forth what defendant claims to be errors, as such are defined under 15 USC § 1666 (b) (1), (2) and (5), based "upon [his] belief that [plaintiff] failed to give all the proper disclosures required by law to [him] prior to opening this account, and additional disclosures since then." Defendant's notices further alleged that he does not believe that he should have been charged finance charges or fees for the "history" of the account and, therefore, he disputed the accuracy of the aforementioned statements with respect to the balances, finance charges and the minimum payments allegedly due as indicated therein. Defendant's notices also sought to obtain documentation showing all disclosures required by law to be given to him prior to opening the account and after the account was opened. Defendant's cross motion for summary judgment was denied by the court below.
The billing error notices allegedly sent by defendant were untimely since more than 60 days elapsed from the date the first periodic statement reflecting the alleged errors was transmitted to defendant at the time the account was opened in 1996 ( see 15 USC § 1666 [a]; 12 CFR 226.13 [b] [1]). Contrary to defendant's contention, the time did not begin to run from the date defendant received the particular disputed billing statements dated September 24, October 26 and November 24, 2004. We note that a creditor cannot be deemed to be in continuous violation of the Fair Credit Billing Act ( see Dawkins v Sears Roebuck and Co., 109 F3d 241 [5th Cir 1997]; Cunningham v Bank One, 487 F Supp 2d 1189, 1193-1194 [WD Wash 2007]; Citibank [South Dakota] N.A. v Griffing, 2006 WL 2139414 *2 [Conn Super, July 17, 2006]). Consequently, plaintiff's obligations under the statute were never triggered. In view of the foregoing, we need not reach the issue of whether the billing error notices contained errors as defined under 15 USC § 1666. Accordingly, defendant's cross motion for summary judgment was properly denied and, upon searching the record, the court below properly dismissed defendant's counterclaim.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.