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You are here: Home1 / Account Stated2 / PLAINTIFF ENTITLED TO SUMMARY JUDGMENT UNDER AN ACCOUNT STATED THEORY IN...
Account Stated, Debtor-Creditor

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT UNDER AN ACCOUNT STATED THEORY IN AN ACTION TO COLLECT A CREDIT CARD DEBT.

The Second Department determined plaintiff, who had purchased defendant's credit card debt of over $16,000, was entitled to summary judgment under an account stated theory. The court explained the elements:

” An account stated is an agreement between [the] parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due'” … . To establish its prima facie entitlement to judgment as a matter of law to recover on an account stated, a plaintiff must show that the defendant received the plaintiff's account statements for payment and retained these statements for a reasonable period of time without objection … .

In the case of existing indebtedness, the agreement may be implied as well as express … . “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” … . Cach, LLC v Aspir, 2016 NY Slip Op 02046, 2nd Dept 3-23-16

ACCOUNT STATED (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN ACTION TO COLLECT A CREDIT CARD DEBT)/DEBTOR-CREDITOR (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT UNDER AN ACCOUNT STATED THEORY IN AN ACTION TO COLLECT A CREDIT CARD DEBT)/CREDIT CARDS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT UNDER AN ACCOUNT STATED THEORY IN AN ACTION TO COLLECT A CREDIT CARD DEBT)

March 23, 2016
Tags: Second Department
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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT TO SUPPORT THE CONVICTIONS STEMMING FROM AN ATTACK ON THE COMPLAINANT, THOSE CONVICTIONS WERE DEEMED AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OR ABSENCE OF IDENTIFICATION EVIDENCE (SECOND DEPT).
FATHER’S MOTION TO VACATE THE DEFAULT ORDER TERMINATING HIS PARENTAL RIGHTS SHOULD HAVE BEEN GRANTED; FATHER ATTEMPTED TO ATTEND THE HEARING, BUT WAS LATE; FATHER WAS ENTITLED TO COUNSEL BUT NONE HAD BEEN ASSIGNED; AND THERE WAS EVIDENCE HE DID NOT ABANDON THE CHILD (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED DEFENDANT IN THIS FORECLOSURE ACTION WAIVED DISMISSAL FOR FAILURE TO TIMELY MOVE FOR A DEFAULT JUDGMENT BECAUSE THE ISSUE WAS DISPOSITIVE AND NEVER LITIGATED; THE BANK’S FAILURE TO TIMELY MOVE FOR A DEFAULT JUDGMENT PURSUANT TO CPLR 3215 (C) REQUIRED DISMISSAL OF THE BANK’S ACTION (SECOND DEPT).
FAILURE TO INFORM THE DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM POTENTIAL PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVALID (SECOND DEPT). ​
THE FACT THAT DEFENDANT’S REPRESENTATIVE’S SIGNATURE AND THE JURAT APPEARED ON AN OTHERWISE BLANK PAGE SEPARATE FROM THE AFFIDAVIT WAS NOT A GROUND FOR DENIAL OF DEFENDANT’S UNOPPOSED MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
LOCK BOX ON THE OUTSIDE OF A BUILDING ON WHICH PLAINTIFF STRUCK HIS HEAD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).
NEGLIGENT SUPERVISION ACTION AGAINST DAY CARE PROVIDER PROPERLY DISMISSED.

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SUIT ALLEGING BREACH OF FIDUCIARY DUTY IN CONNECTION WITH THE SALE OF AN ASSET... CRITERIA FOR AN ORDER OF ATTACHMENT EXPLAINED.
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