The following papers numbered 1 to 11 were read and considered on the plaintiff’s motion for summary judgment Papers Numbered Notice of Motion and Affidavits Annexed 1-3 Order to Show Cause and Affidavits Annexed Affirmation/Affidavits in Opposition 9 Summons and Complaint Replying Affidavits 10 Filed Papers 4,8,11 Exhibits 6-7 Memorandum of Law The above-entitled action was commenced with the filing of a summons and complaint seeking to recover for breach of contract and account stated. The defendant answered and the plaintiff now moves for summary judgment pursuant to CPLR §3212. The plaintiff’s complaint alleges a cause of action for breach of contract and account stated. “An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due.” Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868,869 [3d Dept, 1993] citing Marino v. Watkins, 112 AD2d 511, 512; Interman Indus. Prods v. R.S. M. Electron Power, 37 NY2d 151, 153-154; Chisolm-Ryder Co v. Sommer & Sommer, 70 AD2d 429; 431; 1 NY Jur. 2d, Accounts and Accounting §10. An agreement may either be express or implied by the retention of an account statement without objection for an unreasonable period. Id. at 869. An implied agreement may be found when the defendant receives the statement and retains it for a reasonable period without raising an objection. A defendant’s “[s]ilence is deemed acquiescence and warrants enforcement of the implied agreement to pay.” Chisolm-Ryder Co v. Sommer & Sommer, supra at 431. To establish a breach of contract, the plaintiff must demonstrate “the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of that contract, and resulting damages.” J.P. Morgan Chase v. J.H. Elec. of NY Inc., 69 AD3d 802[2d Dept, 2010]. In cases involving credit card agreements, the acceptance and use of a credit card by the defendant constitutes the offer and acceptance of the contract. Texaco Inc v. Goldstein, 34 Misc 2d 751 (NY Mun. Ct, 1962). The terms of the contract are the credit card agreement. Citibank (SD) N.A. v. Maniaci, 23 Misc 3d 1103[A] [Nassau Dist. Ct, 2009] citing Brower v. Gateway 2000 Inc., 246 AD2d 246 [1st Dept. 1998]. The plaintiff alleged that on or about January 5, 2019, it approved the defendant’s credit card application, opened an account for the defendant and mailed the credit card agreement to the defendant. The plaintiff alleged the defendant used the account as is evidenced by the credit card statements annexed to the plaintiff’s moving papers. Counsel for the plaintiff alleged the defendant’s use of the card and failure to make payments constitutes a breach. In support of the motion, the plaintiff submitted the alleged agreement, account statements, an affirmation of Christopher Pavlik, Esq., counsel for the plaintiff as well as an affidavit of an employee of the plaintiff, Malorie Steele. The plaintiff sought to admit the account statements under the business records exception to the hearsay rule through the affidavit of Marjorie Steele, Document Control Officer. Ms. Steele’s affidavit indicates that she is a custodian of the plaintiff’s records and in this capacity, she has knowledge of the account and access to the information and records concerning the defendant’s account information. She stated she was familiar with the plaintiff’s business practices. She further alleged that the defendant made charges on the account to purchase goods and services and/or obtain cash advances and the defendant was provided “periodic billing statements for the Account when there was Account activity, which described the charges on the Account, along with interest, fees, payments, credits and the amount due on the Account.” Affidavit of Malorie Steele at 5. According to Ms. Steele, the statements were sent either by regular mail or electronic mail. She alleged the records do not reflect any outstanding disputes by the defendant of the charges. She stated that the defendant failed to make payments on the account and is in default. The defendant, through counsel, opposed and argued that the plaintiff failed to make a prima facie case for either cause of action. The defendant alleged that the plaintiff failed to lay a proper foundation as the witness failed to indicate the procedure for the creation, processing and mailing of the account statements. The defendant asserts that the affidavit is a form affidavit and the custodian of the records has failed to establish her qualifications to award summary judgment. “On its motion for summary judgment, the plaintiff had the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law.” Citibank N.A. v. Cabrera, 130 AD3d 861 [2d Dept, 2015]. Further, in determining the motion the court must construe the evidence in the light most favorable to the nonmoving party. Martin v. Bricas, 235 AD2d 192, 196 [1st Dept, 1997]. Only after the movant has met this burden does the burden shift to the non-movant to “demonstrate by admissible evidence the existence of a factual issue requiring a trial or tender an acceptable excuse for his failure to do so.” Zuckerman v. City of New York, 49 NY2d 557 [1980]. Notably, in its reply, the plaintiff did not deny the defendant’s contentions. Rather, the plaintiff asserted that the absence of reference to the plaintiff’s mailing of the account statements does not affect the admissibility of these records. The plaintiff further contended that bank statements are self-authenticating and do not require a foundational testimony of a witness to be admitted into evidence. Elkaim v. Elkaim, 176 AD2d 117 [1st Dept, 1991]. In Elkaim, the Court found that the bank records were “procured by the defendant himself (under compulsion of a court order) from the banks which supposedly created them” and accordingly their authenticity was not challenged. Id. That is not the case here. The plaintiff submitted the account statements for the truth of the statements. This is hearsay. Spensieri v. Lasky, 94 NY2d 231 [1999]. While the plaintiff attempts to classify these documents as business records, CPLR §4518 provides that “any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence as proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. Electronic records are not self-authenticating; thus, a proper foundation is required. Palisades Collection LLC v. Kedik, 67 AD3d 1329 [4th Dept 2009]. “A proper foundation for the admission of a business record must be provide by someone with personal knowledge of the maker’s business practices and procedures.” West Val. Fire Dis. No. 1 v. Village of Springville, 294 AD2d 949, 950 [4th Dept, 2002]. In addition to demonstrating personal knowledge, the proponent must also demonstrate that the record was made in the regular course of business “reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business. Second, it must be the regular course of business to make the record. In other words, the record was made pursuant to established procedures for their routine, habitual, systematic making of such a record. Finally, the record must have been made at the time of the act, transaction, occurrence, or event, or within a reasonable time thereafter assuring that the recollection is fairly accurate, and the entries routinely made.” Second Med. P.C. v. Auto One Ins. Co., 857 N.Y.S.2d 898 [Civ. Ct. Kings Co. 2008]. Ms. Steele’s affidavit alleged that she is the custodian of the plaintiff’s records and has knowledge of the records by virtue of her position. She then explained on the records which she alleged contain the defendant’s name and billing address, account numbers, account history, payments and any credits and the total outstanding balance. She then states “Exhibit A attached hereto and incorporated herein are copies of the Account statement transaction details for the period from 1/5/2019 to 9/25/2020 that was sent to the defendant (the “Account Statement”).” (Affidavit at 4). The defendant was allegedly provided “periodic billing statements for the Account when there was Account activity, which described the charges on the Account, along with interest, fees, payments, credits and the amount due on the Account.” (Steele Affidavit at 5). The affidavit alleged that her records demonstrate “the Account Statement reciting the amount of the debt was sent to the defendant either by regular mail or electronic mail” and allegedly does not reflect any disputes by the defendant of the charges. (Steele Affidavit 6). The affidavit only indicates in a conclusory fashion that the statements from January 5, 2019, through September 25, 2020, were “sent” to the defendant. The allegation that the documents were delivered either via mail or electronically, without either proof of mailing or proof of a standard office procedure designed to ensure the items are properly addressed and mailed, is insufficient to establish either cause of action. See, Tracy v. William Penn Life Ins. Co., 234 AD2d 745 [3d Dept, 1996]. Both breach of contract and account stated require as an element, a showing that the defendant received the statement and failed to pay ad agreed. Ms. Steele does not allege to have personal knowledge of the account, nor does she allege that she personally mailed the statements. Thus, to establish mailing, Ms. Steele was under an obligation to describe a regular office practice for mailing documents of that type. This was not done. Proof of mailing, which may be established through a standard office procedure or proof of the actual mailing gives rise to the presumption that the item was received. The plaintiff has failed to demonstrate its prima facie case of either cause of action. The affidavit of the plaintiff’s employee does not establish that the account statements were mailed and that after the mailing, the defendant retained these statements for an unreasonable period. The court agrees with the defendant’s contentions that this affidavit is a form affidavit that could be used to support any motion. As the affidavit is conclusory and unsupported by the evidence, the plaintiff has failed to meet its burden of establishing that there are no questions of fact. Mattes v. C.R. Baird, Inc., 295 AD2d 324 [2d Dept, 2004]. The Clerk of the court is directed to schedule the above matter for a pre-trial conference and advise all parties accordingly. Dated: September 30, 2022
