Opinion
2006-1920 N C.
Decided January 11, 2008.
Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), entered October 2, 2006. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.
Order, insofar as appealed from, affirmed without costs and, upon searching the record, summary judgment dismissing the counterclaim granted.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
In this action to recover the balance due on a credit card account, defendant interposed a counterclaim alleging that plaintiff violated the Fair Credit Billing Act, and cross-moved for summary judgment. Defendant alleged that plaintiff failed to reply to two billing error notices he sent to plaintiff disputing the monthly account statements he received from plaintiff. 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 monthly account statements with respect to the balances, finance charges and the minimum payments allegedly due as indicated in the notices dated December 15, 2004 and January 19, 2005. 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. By order entered October 2, 2006, insofar as appealed from, the court below denied defendant's cross motion for summary judgment.
Since the notices sent by defendant were untimely as more than 60 days elapsed from the date the first periodic statement reflecting the alleged errors was transmitted to defendant when the account was first opened, for the reasons set forth in the cases of Citibank ( South Dakota), N.A. v Jan Beckerman (____ Misc 3d ____, 2007 NY Slip Op ______, No. 2006-1318 N C, decided herewith) and Discover Bank v Anabella T. Beckerman (____ Misc 3d ____, 2007 NY Slip Op ______ No. 2006-1921 N C, decided herewith), plaintiff's obligations under the statute were never triggered. Therefore, the order, insofar as appealed from, denying defendant's cross motion for summary judgment is affirmed. In light of the determination that the notices sent to plaintiff failed to qualify as billing error notices under 15 USC § 1666 (b), it is appropriate for this court to search the record and grant summary judgment dismissing the counterclaim ( see Meritt Hill Vineyards v Windy Hghts. Vineyard, 61 NY2d 106).
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.