Cite as: American Express Centurion Bank v. Chaflin, 104453/10, NYLJ 1202601561205, at *1 (Sup., NY, Decided May 13, 2013)

Justice Saliann Scarpulla

Decided: May 13, 2013

ATTORNEYS

For Plaintiff: Jaffe & Asher LLP, New York, NY.

For Defendant: Brain Kimmel, Esq., New York, NY.

Papers considered in review of this motion for summary judgment:

Notice of Motion1

Opposition2

Aff in Reply3

DECISION and ORDER

 

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In this action to recover a credit card debt, plaintiff American Express Centurion Bank ("American Express") moves for summary judgment on its complaint against defendant Howard Chaflin ("Chaflin") pursuant to CPLR §3212.

American Express commenced this action on April 6, 2010 seeking to recover the outstanding balance due on Chaflin's credit card in the amount of $166,197.37, plus interest and attorney's fees. In its complaint, American Express alleged three causes of action against Chaflin for breach of contract, account stated, and unjust enrichment.

 

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In its motion, American Express argues that it is entitled to summary judgment because it can demonstrate that Chaflin breached the Platinum Card Member Agreement ("the credit agreement") by failing to make payments on his credit card account, and Chaflin failed to dispute the outstanding balances within a reasonable amount of time.

In opposition, Chaflin argues that triable issues of fact exist that preclude summary judgment in favor of American Express. Chaflin argues that American Express fails to provide a breakdown of the $166,197.37 amount due into categories for charges, fees, and interest. Chaflin also contends that American Express breached the credit agreement by allowing him to charge in excess of a $50,000 limit and by cancelling his credit card.

Discussion

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. Ryan Graphics, Inc. v. Bailin, 39 A.D.3d 249, 251 (1st Dep't 2007). The agreement may be implied by the receipt and retention of an account statement for an unreasonable period of time without objection. Shea & Gould v. Burr, 194 A.D.2d 369, 370 (1st Dep't 1993).

American Express demonstrated its entitlement to judgment as a matter of law on its cause of action for an account stated. In support of its motion, American Express submitted monthly statements pertaining to Chaflin's credit card account from the period March 10, 2006 to May 12, 2008, and an affidavit from its assistant custodian of records

 

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Richard Kier ("Kier"). In his affidavit, Kier stated that American Express issued and sent monthly statements to Chaflin which set forth the charges incurred on the account and the total amount due. Kier stated that Chaflin failed to make payments on his credit card account and that the total outstanding balance due is $166,197.37. Kier further stated that Chaflin never objected or notified American Express that any of the amounts in the monthly statements were erroneous.

Chaflin presents no valid defense to American Express' claim for an account stated, and fails to present evidence to raise any triable issues of fact. Chaflin never denied that he received monthly statements from American Express, and Chaflin never made any objection to the charges incurred on the account or the total balances due. Contrary to Chaflin's claims, the monthly statements provide itemized charges for goods and services and late payment fees. As to Chaflin's argument that American Express breached the credit agreement by allowing him to charge in excess of $50,000 and by cancelling his card, the credit agreement clearly states that the card "has no pre-set spending limit" and that American Express may cancel the card at its sole discretion "at any time, with or without cause."

Therefore, I grant American Express' summary judgment motion on its account stated cause of action.

 

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As to attorney's fees, I find that American Express is entitled to reasonable attorney's fees under the credit agreement. The credit agreement states that, as the cardholder, Chaflin agrees "to pay all reasonable costs, including reasonable attorneys' fees, incurred by us (1) in connection with the collection of any amount due on your Account, whether or not any arbitration, litigation, or similar proceedings are initiated." Here, American Express submits evidence of reasonable attorney's fees in the amount of $3,937.50 through the affirmation of Eric R. Calantone, an attorney from the law firm representing American Express.

In accordance with the foregoing, it is

ORDERED that plaintiff American Express Centurion Bank's motion for summary judgment on its complaint is granted on its account stated cause of action and as to attorney's fees, and otherwise denied as moot; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment in favor of the plaintiff American Express Centurion Bank and against defendant Howard Chaflin, a/k/a Howard J. Chaflin in the amount of $166,197.37, with interest from May 12, 2008, along with attorney's fees in the amount of $3,937.50, plus costs and disbursements in this action.

 

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This constitutes the decision and order of the Court.

Dated: New York, New York

May 13, 2013

ENTER:

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