Capital One Bank (USA), N.A. v. Islam

Capital One Bank (usa), N.A. v Islam (2020 NY Slip Op 50849(U)) [*1] Capital One Bank (USA), N.A. v Islam 2020 NY Slip Op 50849(U) [68 Misc 3d 127(A)] Decided on July 10, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on July 10, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ 2019-17 Q C Capital One Bank (USA), N.A., Respondent, against Naz Islam, Appellant. Naz Islam, appellant pro se. Rubin & Rothman, LLC (Michael K. Johnson of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Queens County (Laurentina McKetney Butler, J.), entered May 17, 2018, deemed from a judgment of that court entered October 29, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 17, 2018 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,358.75. ORDERED that the judgment is affirmed, without costs. In this commercial claims action to recover the principal sum of $1,358.75 for breach of a credit card agreement, plaintiff moved for summary judgment. In a supporting affidavit, plaintiff's witness asserted, and provided documents which demonstrated, that defendant had incurred debt using a credit card which plaintiff had issued to defendant; that defendant had been provided with monthly billing statements which itemized each transaction in which the credit card had been used; that defendant had not disputed the validity of the balances owed as specified in the monthly billing statements; that defendant had failed to make payments on the credit card account in accordance with the terms of the customer agreement which had been mailed to him; and that, at the time this action was commenced, defendant owed plaintiff $1,358.75 pursuant to the credit card agreement. In his opposition to plaintiff's motion, defendant did not deny his use of the credit card or his accrual of the debt plaintiff alleged, but claimed that, because plaintiff had "charged off" his debt, it had no right to a recovery from him. Defendant also questioned [*2]whether plaintiff had transferred its debt to a third party, but failed to provide any documentation to support such a claim. In its reply papers, plaintiff explained that, although its internal accounting records reflected that defendant's debt had been "charged off" after defendant had failed to make any payments for six consecutive months, such "charging off" did not manifest forgiveness of the debt and had no bearing on defendant's liability to plaintiff. By order entered May 17, 2018, the Civil Court granted plaintiff's motion for summary judgment. The affidavit of plaintiff's witness was sufficient to authenticate plaintiff's records with respect to defendant's credit card account and debt (see Capital One Bank [USA] v Koralik, 51 Misc 3d 74, 76-77 [App Term, 1st Dept 2016]; see also Discover Bank v Witt, 62 Misc 3d 139[A], 2019 NY Slip Op 50057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). By presenting evidence that there was an agreement, which defendant had accepted by the use of a credit card issued by plaintiff, and that defendant had breached the agreement by failing to make the required payments, plaintiff demonstrated, prima facie, its entitlement to summary judgment (see American Express Bank, FSB v Scali, 142 AD3d 517, 517-518 [2016]; Citibank [South Dakota], N.A. v Keskin, 121 AD3d 635, 636 [2014]; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 523-524 [2012]). The burden thereupon shifted to defendant "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), which defendant failed to do. Thus, the Civil Court properly granted plaintiff's motion. Accordingly, the judgment is affirmed. ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 10, 2020