DECISION AFTER TRIAL Plaintiff, Citibank, N.A.,(hereinafter plaintiff or NA) commenced this action to recover the principal sum of $5,459.60, allegedly owed by defendant, Holly A. Geyer (hereinafter defendant or Ms. Geyer) upon a claimed credit card debt. Two causes of action are asserted — breach of contract and account stated. The non-jury trial was held before the undersigned on December 11, 2018. At the close of plaintiff’s case, the defendant moved for dismissal for failure of the plaintiff to have established a prima facie case of entitlement to recover on either cause of action. Extensive oral argument was taken and, after the court reserved decision thereon, the defendant rested without calling any additional witnesses.At trial plaintiff called only one witness to testify — Judy Delage — Vice President and Custodian of Records for Citibank, N.A. Her testimony is found to be credible in all respects. Insofar as is relevant, Ms. Delage began her employment as a custodian of records for Citicorp Credit Services, Inc. (hereinafter CCSI) which was the servicing agent for Citibank (South Dakota) N.A. (hereinafter SD).In May 2009, the defendant, Holly A. Geyer applied for a Sears Mastercard credit card by SD (see Plaintiff’s Exhibit 1) which card was eventually issued (hereinafter the account or credit card account). All relevant transactions related to the account as introduced into evidence at trial were maintained by a computer system shared by CCSI and SD when Ms. Geyer’s credit card account was first opened in 2009, continuing through 2011, and thereafter by NA from 2011 to present.Ms. Delage testified that in July 2011 SD was merged into NA and that notwithstanding same her role as custodian of records in the same computer system that contained Ms. Geyer’s account information remained unchanged — although her title may have previously differed. By January 2012 she was formally an employee of NA. Ms. Delage’s description of her role and the maintenance of all computerized credit card records during this transition period was described by her as “seamless” since the system itself and her job never changed.Copies of Ms. Geyer’s monthly credit card account statements were introduced into evidence (Plaintiff’s Exhibit 2) for the period between July 2009 (“Payment Due Date 8/12/09″) when her balance was $0.00 following a payment of $13.45 and August 2011 (“Payment Due Date September 12, 2011″) when her balance was shown as $5,459.60 past due. The immediately preceding monthly statement (“Payment Due Date 8/12/11″) showing the identical past due amount of $5,459.60 included the following additional information on the 3rd pages under “Cardmember News”:“IMPORTANT NOTICE ABOUT YOUR ACCOUNTEffective July 1, 2011, Citibank (South Dakota), N.A.is merged into Citibank, N.A.Citibank, N.A. which is located in Sioux Falls, SouthDakota, is the new issuer of your account”On the 4th page of said statement again under “Cardmember News” it reads“All references to Citibank (South Dakota), N.A.,in your account documentation, including the Card Agreement,and in communications about your account should be deemed to refer to Citibank, N.A.Any optional program provided by Citibank (South Dakota),N.A., is now provided by Citibank, N.A.”Also accepted into evidence (Plaintiff’s Exhibit 4) were copies of three personal checks dated “5/29/09″, “June 24, 2010″ and “1-1-2011″ bearing the defendant’s name, address and signature for varying amounts, which amounts were credited on the respective next monthly account statement. This exhibit included copies of the three returned payment stub portions of the monthly statements for which these partial payments were being remitted.The only other exhibit accepted into evidence (Plaintiff’s Exhibit 3) was that of a copy of NA’s Card Agreement sent to the defendant in late 2011, months after the account had fallen into delinquency. The last received payment by the defendant (of $85.00) was credited on March 9, 2011.Standing — As a threshold issue, the court rejects the defendant’s contention that the plaintiff NA is without standing to bring the within action. As previously stated, the testimony of Ms. Delage was at all times credible and on voir dire regarding her knowledge of the creation and maintenance of the computerized records of NA as they related to records naming SD, she candidly revealed that her actual employer when the defendant applied for the Sears Mastercard was neither NA or SD, but instead CCSI, seamlessly becoming an employee of NA soon after the merger of SD into NA in July 2011 (FTR at 2:32:00 — 2:35:101; see also 3:08:00 — 3:08:45). Moreover, she testified to having seen the letter from the Comptroller of the Currency regarding the merger (FTR at 3:13:10 — 3:13:32). Finally, there was introduced into evidence the monthly statement associated with the July, 2011 time period of the merger explicitly advising the defendant that a merger had occurred and that all references to SD should be deemed to refer to NA (Plaintiff’s Exhibit 2 — monthly statement bearing the “Payment Due Date 8/12/11″). On balance, sufficient evidence exists to conclude that SD merged into NA (see Barclay’s Bank of New York, N.A. v. Smitty’s Ranch, Inc. 122 AD2d 323,324 [3d Dept 1986]).In turn, “Banking Law §602, which governs the effect of a merger, provides that the receiving bank shall be considered the same business and corporate entity as the bank merged into it, and that all of the property, rights, and powers of the merged bank shall vest in the receiving bank” (Moxey v. Payne, 2018 NY App Div LEXIS 8247, 2018 NY Slip Op 08291 [2d Dept] [Internal quotes and citations omitted]). Consequently, NA has standing to bring this action to enforce the rights of SD as the issuer of the Sears Mastercard to the defendant (see Citimortgage, Inc. v. Rockefeller, 155 AD3d 998 [2d Dept 2017; Barclay's Bank of New York, N.A. v. Smitty's Ranch, Inc., supra).First cause of action: Breach of Contract --- It is well settled that a "plaintiff establishes a breach of contract action by demonstrating the existence of a contract between the parties, performance by the plaintiff, breach by the defendant and damages resulting from the breach" (National Commerce Exchange of Long Island, Inc., v. Cosmopolitan Coach LTD, 2012 NY Slip Op. 30394 (U).Here, the only evidence of the terms and conditions of the parties' agreement is premised on plaintiff's Exhibit 3, an agreement which post-dates by several months the last partial payment by the defendant. As the defendant never used the credit card after some unknown modification of the agreement previously in existence so as to establish acceptance of its terms (see Citibank (South Dakota), N.A. v. Brown-Serulovic, 97 AD3d 522, 523-524 [2d Dept 2012]), there exists nothing to establish what the terms of the parties’ agreement was during the period of the defendant’s use of the Sears card and the defendant should not be found to have accepted whatever modification of those terms might exist in this new agreement. Absent proof of same, the court is persuaded by defendant’s argument that plaintiff has failed to establish its prima facie entitlement to a recovery based thereon.The defendant’s motion to dismiss this cause of action is, accordingly, granted.Second cause of action: Account Stated — “An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due. Although an account stated may be based on an express agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account. The ‘agreement’ at the core of an account stated is independent of the underlying obligation between the parties.” (Holtzman v. Griffith, 162 AD3d 874, 875-876 [2d Dept 2018][Internal quotes and citations omitted]).Here, the documentary evidence and credible testimony establishes that during the period from July, 2009 through March, 2011 monthly statements were evidently received by the defendant as she was making regular partial payments thereon2. Moreover, Plaintiff’s Exhibit 3 establishes that at least some payments were being made using the defendant’s personal checking account and that as of the defendant’s most recent partial payment credited on March 9, 2011 the balance due from the defendant was $5,122.38. That amount had increased to $5,459.60 as of the final two monthly statements included in Plaintiff’s Exhibit 3. No objections were made by defendant to plaintiff in response to any of the billings.Accordingly, plaintiff has established its prima facie entitlement to judgment on its cause of action for an account stated in the sum of $5,459.60. Given the absence of any evidence or testimony on defendant’s behalf, plaintiff is awarded judgment on its second cause of action.Plaintiff shall submit judgment on notice within sixty (60) days of receipt of a copy of this order from any source (see 22 NYCRR §212.33) in the total sum of $5,459.60, plus costs and disbursements. Pre-judgment interest is not sought in the complaint and is deemed waived.Dated: January 14, 2019
