Opinion
2014-1868 Q C
12-14-2015
Discover Bank, Respondent, v. Carl Davis, Appellant.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered June 9, 2014, deemed from a judgment of the same court entered July 16, 2014 (see CPLR 5501 [c]). The judgment, entered upon the June 9, 2014 order granting plaintiff's motion for summary judgment and implicitly dismissing defendant's counterclaim, awarded plaintiff the principal sum of $12,002.81.
ORDERED that the judgment is affirmed, without costs.
In this action to recover the principal sum of $12,002.81 for breach of a credit card agreement and based upon an account stated, plaintiff moved for summary judgment on both causes of action. In opposition to the motion, defendant submitted an unsigned statement wherein he alleged, for the first time, that plaintiff lacked standing to sue him. Defendant's appeal from an order entered June 9, 2014 granting plaintiff's motion for summary judgment and implicitly dismissing defendant's counterclaim is deemed from the judgment subsequently entered on July 16, 2014 pursuant to the order (see CPLR 5501 [c]), which judgment awarded plaintiff the principal sum of $12,002.81. On appeal, defendant contends that plaintiff lacked standing to sue him.
Inasmuch as "defendant did not raise the standing issue in his answer or in a pre-answer motion to dismiss the complaint, . . . [he] waive[d] any defense based on a lack of standing" (Wells Fargo Bank Minn. N.A. v Mastropaolo, 42 AD3d 239, 244 [2007]; see CPLR 3211 [e]). We note, in any event, that defendant's unsworn papers submitted in opposition to plaintiff's motion lacked any probative value (see Washington v Mendoza, 57 AD3d 972 [2008]; Ford Motor Credit Co., LLC v Berbick, 26 Misc 3d 142[A], 2010 NY Slip Op 50383[U] [App Term, 9th & 10th Jud Dists 2010]).
Accordingly, the judgment is affirmed.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: December 14, 2015