Preview
FILED: CATTARAUGUS COUNTY CLERK 04/29/2021 10:00 AM INDEX NO. 88125
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021
SUPREME COURTOF THE STATE OF NEW YORK FILE NO. 1290142
COUNTY OF CATTARAUGUS
---------------------------------x
BANK OF AMERICA, N.A.,
Plaintiff,
AFFIRMATION
-against-
WAYNE P WIEDEMANN, INDEX NO. 88125
Defendant.
-------------------------------------X
VALERIE E. WATTS, an attorney at law duly admitted to practice in
the State of New York, an associate of the firm of RUBIN & ROTHMAN,
LLC, attorneys of record for plaintiff, hereby affirms the
following to be true under penalty of perjury:
1. This affirmation is submitted in support of plaintiff’s
motion for an order pursuant to CPLR §3212, granting summary
judgment to plaintiff as against defendant Wayne P. Wiedemann
(hereinafter “defendant”) for breach of contract of a revolving
credit agreement entered into between the parties.
2. As is set forth in the complaint in this action, and in
plaintiff’s affidavit in support of this motion, plaintiff seeks
judgment against defendant in the sum of $4,136.83 monetary damages
due on a credit card account. A copy of the summons and complaint
is attached hereto, marked Exhibit E.
3. Defendant appeared in this action by service of a pro se
answer, annexed hereto as Exhibit F. As can be seen therein,
defendant asserts financial hardship.
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021
4. With respect to defendant’s assertions of hardship,
while they are unfortunate, they are not a defense against
plaintiff’s claim. See, 407 East 61st Garage, Inc. v. Savoy Fifth
Ave Corp., 23 N.Y.2d 275, 281; 296 N.Y.S.2d 338 (1968),(holding
“where impossibility or difficulty of performance is occasioned
only by financial difficulty or economic hardship, even to the
extent of insolvency or bankruptcy, performance of a contract is
not excused”).
5. The facts and circumstances of plaintiff’s claim and the
balance presently due are as set forth in plaintiff’s affidavit of
Deborah Taro and the annexed exhibits.
6. In support of its motion for summary judgment, plaintiff
submits three (3) years of defendant’s account statements, from
closing date September 20, 2015 through the last billing statement
mailed to defendant after his default, closing date August 20,
2018 in which the balance due is $4,136.83, the sum of damages
alleged in the complaint (Exhibit B), amendments to the credit
card account agreement(Exhibit A), a copy of a payment check drawn
to plaintiff’s order on defendant’s checking account at M&T Bank
in the sum of $4,212.60, bearing defendant’s name on its face,
signed by defendant and notating the last four digits of the credit
card account in the memo – (9117), which appears as a credit on
the account March 9, 2016 (See billing statement in Exhibit B with
closing date March 20, 2016)(Exhibit C) and the certificate of
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FILED: CATTARAUGUS COUNTY CLERK 04/29/2021 10:00 AM INDEX NO. 88125
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021
public record of the Comptroller of the Currency as to plaintiff
being a national bank located in North Carolina (Exhibit D). The
exhibits have been redacted pursuant to N.Y.Ct.Rules §214.12(1).
7. As evinced by the billing statement closing date
February 20, 2018, the last time defendant made a payment on the
account was on March 15, 2018 in the sum of $50.00. The last time
defendant paid the Total Minimum Payment Due was on December 14,
2017 when he paid $80.00(see the billing statement closing date
December 20, 2017).
8. Pursuant to the terms of the amendments to the account
agreement under the heading “TOTAL MINIMUM PAYMENT DUE” in Exhibit
A, defendant was obligated to pay at least the total minimum
payment due by its payment due date as shown in each monthly
statement, the failure to do so being an act of default.
9. In the First Department Appellate Division it has been
held that monthly credit card billing statements are self-
authenticating, Portfolio Recovery Assoc., LLC v. Lall, 127 AD3d
576, 8 N.Y.S.3d 101 (1st Dept 2015). Citing Portfolio, the First
Department Appellate Term held in Capital One Bank (USA) v.
Koralik, 51 Misc3d 74, 76, 32 N.Y.S.3d 805, 807:
“The statements of defendant’s credit card account,
which referenced, inter alia, defendant’s name, address,
account number, any transaction for the relevant period,
the balance owed and the payments received, were self-
authenticating”.
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10. The law as to credit cards is that defendant’s use of
the credit card constituted his acceptance of plaintiff’s offer of
credit in issuing the card to defendant, see Eze v. JP Morgan Chase
Bank, NA, 2010 WL 3189813 (E.D.N.Y.):
“’The issuance of a credit card constitutes an offer of
credit, and the use of the card constitutes acceptance
of the offer. The terms of the contract are the credit
card agreement. A contract will be interpreted in
accordance with the intent of the parties as expressed
in the language of the agreement.’ (citing Greenfield v.
Philles Records, Inc., 98 N.Y.2d 562, 750 N.Y.S.2d 565,
780 N.E.2d 166 (2002); Katina, Inc. v. Famiglietti, 306
A.D.2d 440, 761 N.Y.S.2d 327 (2d Dep't 2003); Brower v.
Gateway 2000, Inc., 246 A.D.2d 246, 676 N.Y.S.2d 569
(1st Dep't 1998); Feder v. Fortunoff, Inc., 114 A.D.2d
399, 494 N.Y.S.2d 42 (2d Dep't 1985))); Anonymous v. JP
Morgan Chase & Co., No. 05-CV-2442, 2005 U.S. Dist. LEXIS
26083, at *9-*10, 2005 WL 2861589 (S.D.N.Y. Oct. 31,
2005) (‘Using a credit card and making payments to the
credit provider binds the cardholder to the terms and
conditions of card use.’ (citing Grasso v. First USA
Bank, 713 A.2d 304, 309 (Del.Super.Ct.1998)); In re
Carlin, No. 88-11689, 2009 Bankr.LEXIS 725, at *6
(Bankr.S.D.N.Y. Feb. 10, 2009) (‘A credit card user
implicitly agrees to the terms of use whenever he uses
the card.’ (citing Anonymous, 2005 U.S. Dist. LEXIS
26083, at *9-10)); see also Citibank (S.D.) N.A. v.
Roberts, 304 A.D.2d 901, 902, 757 N.Y.S.2d 365, 366 (3d
Dep't 2003) (‘Plaintiff [bank] met its initial burden on
the [summary judgment] motion by presenting proof
establishing, among other things, the existence of the
agreement between the parties, issuance of the credit
cards at defendant's address, use of the credit cards,
retention of the monthly statements and payments on the
account by defendant’”.
11. In Citibank (South Dakota) N.A. v. Keskin, 121 A.D.3d
635, 993 N.Y.S.2d 343, 344 (2nd Dept 2014) it was held:
“The plaintiff made a prima facie showing of its
entitlement to judgment as a matter of law on its cause
of action to recover damages for breach of contract by
tendering sufficient evidence that there was an
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agreement, which the defendant accepted by his use of a
certain credit card issued by the plaintiff and payments
made thereon, and which was breached by the defendant
when he failed to make the required payments (see
Citibank [S.D.], N.A. v. Brown–Serulovic, 97 A.D.3d 522,
523–524, 948 N.Y.S.2d 331; Citibank [S.D.] N.A. v.
Sablic, 55 A.D.3d 651, 652, 865 N.Y.S.2d 649; Feder v.
Fortunoff, Inc., 114 A.D.2d 399, 399, 494 N.Y.S.2d 42).
The plaintiff also established its prima facie
entitlement to judgment as a matter of law on its cause
of action to recover on an account stated by tendering
sufficient evidence that it generated account statements
for the defendant in the regular course of business,
that it mailed those statements to the defendant on a
monthly basis, and that the defendant accepted and
retained these statements for a reasonable period of
time without objection, and made partial payments
thereon (see American Express Centurion Bank v. Gabay,
94 A.D.3d 795, 795, 941 N.Y.S.2d 863; Landa v. Blocker,
87 A.D.3d 719, 721, 928 N.Y.S.2d 779; LD Exch. v. Orion
Telecom. Corp., 302 A.D.2d 565, 565, 755 N.Y.S.2d 630;
Jovee Contr. Corp. v. AIA Envtl. Corp., 283 A.D.2d 398,
400, 724 N.Y.S.2d 455).”
12. Plaintiff’s affidavit in support with attached exhibits
are a prima facie showing that defendant used the credit card
issued by plaintiff, made payments thereon and breached when he
failed to pay at least the total minimum payment due by its payment
due date pursuant to the terms of the account agreement.
13. Defendant’s monthly payments are his admission as to the
accuracy of the content of the monthly billing statements, see
Chisholm-Ryder Co., Inc. v. Sommer & Sommer, 70 A.D.2d 429, 431,
421 N.Y.S.2d 455, 457 (4th Dept 1979): “An agreement may also be
implied if the debtor makes partial payment. The partial payment
is considered acknowledgment of the correctness of the account”
[cites omitted].
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021
14. Plaintiff has made no prior application for the relief
sought herein.
WHEREFORE, plaintiff respectfully requests an order granting
it summary judgment against defendant in the sum of $4,136.83
together with taxable costs and disbursements.
Dated: Islandia, New York
April 28, 2021
_____________________________
Valerie E. Watts, Esq.
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Preview
FILED: CATTARAUGUS COUNTY CLERK 04/29/2021 10:00 AM INDEX NO. 88125 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021 SUPREME COURTOF THE STATE OF NEW YORK FILE NO. 1290142 COUNTY OF CATTARAUGUS ---------------------------------x BANK OF AMERICA, N.A., Plaintiff, AFFIRMATION -against- WAYNE P WIEDEMANN, INDEX NO. 88125 Defendant. -------------------------------------X VALERIE E. WATTS, an attorney at law duly admitted to practice in the State of New York, an associate of the firm of RUBIN & ROTHMAN, LLC, attorneys of record for plaintiff, hereby affirms the following to be true under penalty of perjury: 1. This affirmation is submitted in support of plaintiff’s motion for an order pursuant to CPLR §3212, granting summary judgment to plaintiff as against defendant Wayne P. Wiedemann (hereinafter “defendant”) for breach of contract of a revolving credit agreement entered into between the parties. 2. As is set forth in the complaint in this action, and in plaintiff’s affidavit in support of this motion, plaintiff seeks judgment against defendant in the sum of $4,136.83 monetary damages due on a credit card account. A copy of the summons and complaint is attached hereto, marked Exhibit E. 3. Defendant appeared in this action by service of a pro se answer, annexed hereto as Exhibit F. As can be seen therein, defendant asserts financial hardship. 1 of 6 FILED: CATTARAUGUS COUNTY CLERK 04/29/2021 10:00 AM INDEX NO. 88125 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021 4. With respect to defendant’s assertions of hardship, while they are unfortunate, they are not a defense against plaintiff’s claim. See, 407 East 61st Garage, Inc. v. Savoy Fifth Ave Corp., 23 N.Y.2d 275, 281; 296 N.Y.S.2d 338 (1968),(holding “where impossibility or difficulty of performance is occasioned only by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy, performance of a contract is not excused”). 5. The facts and circumstances of plaintiff’s claim and the balance presently due are as set forth in plaintiff’s affidavit of Deborah Taro and the annexed exhibits. 6. In support of its motion for summary judgment, plaintiff submits three (3) years of defendant’s account statements, from closing date September 20, 2015 through the last billing statement mailed to defendant after his default, closing date August 20, 2018 in which the balance due is $4,136.83, the sum of damages alleged in the complaint (Exhibit B), amendments to the credit card account agreement(Exhibit A), a copy of a payment check drawn to plaintiff’s order on defendant’s checking account at M&T Bank in the sum of $4,212.60, bearing defendant’s name on its face, signed by defendant and notating the last four digits of the credit card account in the memo – (9117), which appears as a credit on the account March 9, 2016 (See billing statement in Exhibit B with closing date March 20, 2016)(Exhibit C) and the certificate of 2 of 6 FILED: CATTARAUGUS COUNTY CLERK 04/29/2021 10:00 AM INDEX NO. 88125 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021 public record of the Comptroller of the Currency as to plaintiff being a national bank located in North Carolina (Exhibit D). The exhibits have been redacted pursuant to N.Y.Ct.Rules §214.12(1). 7. As evinced by the billing statement closing date February 20, 2018, the last time defendant made a payment on the account was on March 15, 2018 in the sum of $50.00. The last time defendant paid the Total Minimum Payment Due was on December 14, 2017 when he paid $80.00(see the billing statement closing date December 20, 2017). 8. Pursuant to the terms of the amendments to the account agreement under the heading “TOTAL MINIMUM PAYMENT DUE” in Exhibit A, defendant was obligated to pay at least the total minimum payment due by its payment due date as shown in each monthly statement, the failure to do so being an act of default. 9. In the First Department Appellate Division it has been held that monthly credit card billing statements are self- authenticating, Portfolio Recovery Assoc., LLC v. Lall, 127 AD3d 576, 8 N.Y.S.3d 101 (1st Dept 2015). Citing Portfolio, the First Department Appellate Term held in Capital One Bank (USA) v. Koralik, 51 Misc3d 74, 76, 32 N.Y.S.3d 805, 807: “The statements of defendant’s credit card account, which referenced, inter alia, defendant’s name, address, account number, any transaction for the relevant period, the balance owed and the payments received, were self- authenticating”. 3 of 6 FILED: CATTARAUGUS COUNTY CLERK 04/29/2021 10:00 AM INDEX NO. 88125 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021 10. The law as to credit cards is that defendant’s use of the credit card constituted his acceptance of plaintiff’s offer of credit in issuing the card to defendant, see Eze v. JP Morgan Chase Bank, NA, 2010 WL 3189813 (E.D.N.Y.): “’The issuance of a credit card constitutes an offer of credit, and the use of the card constitutes acceptance of the offer. The terms of the contract are the credit card agreement. A contract will be interpreted in accordance with the intent of the parties as expressed in the language of the agreement.’ (citing Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 750 N.Y.S.2d 565, 780 N.E.2d 166 (2002); Katina, Inc. v. Famiglietti, 306 A.D.2d 440, 761 N.Y.S.2d 327 (2d Dep't 2003); Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 676 N.Y.S.2d 569 (1st Dep't 1998); Feder v. Fortunoff, Inc., 114 A.D.2d 399, 494 N.Y.S.2d 42 (2d Dep't 1985))); Anonymous v. JP Morgan Chase & Co., No. 05-CV-2442, 2005 U.S. Dist. LEXIS 26083, at *9-*10, 2005 WL 2861589 (S.D.N.Y. Oct. 31, 2005) (‘Using a credit card and making payments to the credit provider binds the cardholder to the terms and conditions of card use.’ (citing Grasso v. First USA Bank, 713 A.2d 304, 309 (Del.Super.Ct.1998)); In re Carlin, No. 88-11689, 2009 Bankr.LEXIS 725, at *6 (Bankr.S.D.N.Y. Feb. 10, 2009) (‘A credit card user implicitly agrees to the terms of use whenever he uses the card.’ (citing Anonymous, 2005 U.S. Dist. LEXIS 26083, at *9-10)); see also Citibank (S.D.) N.A. v. Roberts, 304 A.D.2d 901, 902, 757 N.Y.S.2d 365, 366 (3d Dep't 2003) (‘Plaintiff [bank] met its initial burden on the [summary judgment] motion by presenting proof establishing, among other things, the existence of the agreement between the parties, issuance of the credit cards at defendant's address, use of the credit cards, retention of the monthly statements and payments on the account by defendant’”. 11. In Citibank (South Dakota) N.A. v. Keskin, 121 A.D.3d 635, 993 N.Y.S.2d 343, 344 (2nd Dept 2014) it was held: “The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on its cause of action to recover damages for breach of contract by tendering sufficient evidence that there was an 4 of 6 FILED: CATTARAUGUS COUNTY CLERK 04/29/2021 10:00 AM INDEX NO. 88125 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021 agreement, which the defendant accepted by his use of a certain credit card issued by the plaintiff and payments made thereon, and which was breached by the defendant when he failed to make the required payments (see Citibank [S.D.], N.A. v. Brown–Serulovic, 97 A.D.3d 522, 523–524, 948 N.Y.S.2d 331; Citibank [S.D.] N.A. v. Sablic, 55 A.D.3d 651, 652, 865 N.Y.S.2d 649; Feder v. Fortunoff, Inc., 114 A.D.2d 399, 399, 494 N.Y.S.2d 42). The plaintiff also established its prima facie entitlement to judgment as a matter of law on its cause of action to recover on an account stated by tendering sufficient evidence that it generated account statements for the defendant in the regular course of business, that it mailed those statements to the defendant on a monthly basis, and that the defendant accepted and retained these statements for a reasonable period of time without objection, and made partial payments thereon (see American Express Centurion Bank v. Gabay, 94 A.D.3d 795, 795, 941 N.Y.S.2d 863; Landa v. Blocker, 87 A.D.3d 719, 721, 928 N.Y.S.2d 779; LD Exch. v. Orion Telecom. Corp., 302 A.D.2d 565, 565, 755 N.Y.S.2d 630; Jovee Contr. Corp. v. AIA Envtl. Corp., 283 A.D.2d 398, 400, 724 N.Y.S.2d 455).” 12. Plaintiff’s affidavit in support with attached exhibits are a prima facie showing that defendant used the credit card issued by plaintiff, made payments thereon and breached when he failed to pay at least the total minimum payment due by its payment due date pursuant to the terms of the account agreement. 13. Defendant’s monthly payments are his admission as to the accuracy of the content of the monthly billing statements, see Chisholm-Ryder Co., Inc. v. Sommer & Sommer, 70 A.D.2d 429, 431, 421 N.Y.S.2d 455, 457 (4th Dept 1979): “An agreement may also be implied if the debtor makes partial payment. The partial payment is considered acknowledgment of the correctness of the account” [cites omitted]. 5 of 6 FILED: CATTARAUGUS COUNTY CLERK 04/29/2021 10:00 AM INDEX NO. 88125 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/29/2021 14. Plaintiff has made no prior application for the relief sought herein. WHEREFORE, plaintiff respectfully requests an order granting it summary judgment against defendant in the sum of $4,136.83 together with taxable costs and disbursements. Dated: Islandia, New York April 28, 2021 _____________________________ Valerie E. Watts, Esq. 6 of 6