Summary
holding the credit card company met its initial burden by submitting an affidavit stating the account had been rendered and retained without colorable objection for over four and one-half months before the action was commenced, and a statement the customer disputed the account in general and conclusory terms was insufficient to create a genuine issue of material fact
Summary of this case from Capital One Bank v. DenboerOpinion
Filed May 2, 2001.
Appeal from Order of Supreme Court, Steuben County, Latham, J. — Summary Judgment.
PRESENT: PINE, J.P., HAYES, WISNER, KEHOE AND BURNS, JJ.
Order unanimously reversed on the law with costs and motion granted.
Memorandum:
Supreme Court erred in denying plaintiff's motion seeking summary judgment on an account stated for a credit card balance on the ground that plaintiff had made a previous motion for the same relief. While successive motions for summary judgment are generally discouraged ( see, Welch Foods v. Wilson, 277 A.D.2d 882; see also, Gadley v. U.S. Sugar Co., 259 A.D.2d 1041), in this case defendant did not oppose the present motion on that ground. Indeed, neither party has addressed that ground on appeal.
We conclude that plaintiff's motion should have been granted. Plaintiff met its initial burden by submitting the affidavit of a manager stating that the account had been rendered and retained without colorable objection for over 4½ months before the action was commenced ( see, Sisters of Charity Hosp. of Buffalo v. Riley, 231 A.D.2d 232, 282 ; see also, Spectra Audio Research v. 60-86 Madison Ave. Dist. Mgt. Assn., 267 A.D.2d 23, 24 , lv dismissed 95 N.Y.2d 791; Jim-Mar Corp. v. Aquatic Constr., 195 A.D.2d 868, 869-870, lv denied 82 N.Y.2d 660). The manager averred that the purported objection by defendant was a frivolous and overbroad "dispute letter" from the "Capoccia firm" (the Andrew J. Capoccia Law Centers) sent before defendant ceased making payment. The "dispute letter" merely stated in general and conclusory terms that defendant disputed the account. That purported objection is a nullity ( see generally, Matter of Capoccia, 272 A.D.2d 838, lv dismissed 95 N.Y.2d 887). Defendant has failed to raise a triable issue of fact ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562).