American Express Natl. Bank v. Saadati

American Express Natl. Bank v Saadati (2022 NY Slip Op 51103(U)) [*1] American Express Natl. Bank v Saadati 2022 NY Slip Op 51103(U) [77 Misc 3d 126(A)] Decided on October 14, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 14, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ 2021-806 N C American Express National Bank, Respondent, against Masoud Saadati, Individually and Doing Business as EZRider, Appellant, EZRider, Defendant. Masoud Saadati, appellant pro se. American Express Legal Dept., for respondent (no brief filed). Appeal from an order of the District Court of Nassau County, First District (Robert E. Pipia, J.), dated November 19, 2021. The order, insofar as appealed from, granted the branches of plaintiff's motion seeking summary judgment on its causes of action for breach of a credit card agreement and on an account stated against defendant Masoud Saadati. ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of plaintiff's motion seeking summary judgment on its causes of action for breach of a credit card agreement and on an account stated against defendant Masoud Saadati are denied. In this action to recover the principal sum of $12,576.64 for breach of a credit card agreement, unjust enrichment and on an account stated, plaintiff moved for summary judgment. Mehdi Touhidi, plaintiff's custodian of records, submitted a supporting affidavit wherein he stated that he had personal knowledge of plaintiff's regular practices and procedures with respect to the transmittal of billing statements and of the quality assurance controls plaintiff utilized to ensure that such transmittals were properly made; that plaintiff "sends or otherwise makes available monthly billing statements to cardmembers who carry a balance"; and that, based on his personal knowledge, plaintiff provides "periodic account statements to its customers." Touhidi also stated that plaintiff's cardmember agreements permit plaintiff to change their terms from time to time and that plaintiff advises cardholders of changes through change-in-terms notices [*2]which it either mails separately to its cardmembers or includes in monthly billing statements. He further stated that, in December 2016, defendants had opened a credit card account with plaintiff's predecessor entity, American Express Bank, FSB; that the last payment to defendants' account had been $350 paid in March 2020; that, on or about September 10, 2020, plaintiff had mailed an account statement to defendants at defendants' last known address, which statement set forth an amount due of $12,576.64; and that plaintiff's records did not reflect that the statement had been returned to plaintiff by the post office or that defendants had objected to it. Plaintiff provided a copy of the December 19, 2016 cardmember agreement for defendants, for an account ending in the digits "1000," a statement addressed to defendants for the period ended March 11, 2020 for an account ending in the digits "2008," which statement listed charges made between February 17, 2020 and March 2, 2020 that totaled $263.83 and a $350 payment made on March 2, 2020, and a copy of its final statement to defendants on the account ending in the digits "2008" for the period ended September 10, 2020, which showed an outstanding balance of $12,576.64. Defendant Masoud Saadati opposed plaintiff's motion, stating that he did not recall having made an agreement with plaintiff. Masoud Saadati appeals from so much of an order of the District Court (Robert E. Pipia, J.) dated November 19, 2021 as granted the branches of plaintiff's motion seeking summary judgment against Saadati on plaintiff's causes of action for breach of a credit card agreement and on an account stated. Plaintiff established that there was a credit card agreement, which defendants accepted by using the card and making at least one payment thereon (see American Express Bank, FSB v Scali, 142 AD3d 517, 517-518 [2016]; see also Citibank [South Dakota], N.A. v Keskin, 121 AD3d 635, 636 [2014]; Bank of Am., N.A. v Reed, 59 Misc 3d 133[A], 2018 NY Slip Op 50478[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). However, Touhidi failed to attest to personal knowledge that account statements were mailed to defendants; nor did he attest to a standard office practice and procedure designed to ensure that items were properly addressed and mailed. Moreover, the records plaintiff submitted in support of its motion did not establish that account statements had been mailed to defendants. Plaintiff thus failed to establish its prima facie entitlement to judgment against defendant Masoud Saadati as a matter of law on its cause of action to recover on an account stated (see Bank of Am., N.A. v Ball, 188 AD3d 974, 975 [2020]; see also Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161, 162 [2005]). Similarly, Touhidi failed to attest to personal knowledge that amendments to the cardholder agreement, if any, had been mailed to defendants or to a standard office practice and procedure designed to ensure that any such amendments had been properly addressed and mailed to defendants (see Bank of Am., N.A. v Ball, 188 AD3d at 975). Furthermore, the cardholder agreement upon which plaintiff relies bears a number ending in the digits 1000, but the statement on which plaintiff seeks a recovery ends in the digits 2008. Touhidi only addressed this discrepancy in conclusory terms, without discussing whether the new account number carried different terms from the old account number or whether defendants had explicitly or implicitly agreed to be bound under the agreement that ended in the digits 2008. We thus conclude that plaintiff failed to establish its prima facie entitlement to judgment against defendant Masoud Saadati as a matter of law on the breach of contract cause of action. Accordingly, the order, insofar as appealed from, is reversed and the branches of [*3]plaintiff's motion seeking summary judgment on its causes of action for breach of a credit card agreement and on an account stated against defendant Masoud Saadati are denied. GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 14, 2022