American Express Natl. Bank v. Kleiman

2024 NY Slip Op 33113(U)

• Court: New York Supreme Court, New York County
• Decided: September 6, 2024
• Docket: Index No. 152537/2021
• Status: Unpublished

Opinion

American Express Natl. Bank v Kleiman 2024 NY Slip Op 33113(U) September 6, 2024 Supreme Court, New York County Docket Number: Index No. 152537/2021 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 152537/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 09/06/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 152537/2021 AMERICAN EXPRESS NATIONAL BANK MOTION DATE 08/26/2021 Plaintiff, MOTION SEQ. NO. 001 - V -

SHEILA KLEIMAN, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18 were read on this motion to/for DISMISSAL

ORDER

Upon the foregoing documents, it is

ORDERED that the motion of the defendant Sheila Kleiman to

dismiss the complaint is denied, and it is further

ORDERED that defendant Sheila Kleiman shall serve and file an

answer to the complaint within 20 days from service of this order

with notice of entry; and it is further

ORDERED that counsel are directed to post on NYSCEF a proposed

preliminary discovery conference order or competing proposed

preliminary discovery conference order(s) at least two days before

October 24, 2024, on which date counsel shall appear via Microsoft

Teams, unless such appearance be waived by the court.

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DECISION

The defendant Sheila Kleiman ("Kleiman") moves to dismiss the

complaint of plaintiff American Express National Bank ("AmEx")

(the "Complaint"), which seeks damages for breach of a credit card

agreement. She moves pursuant to CPLR 3211 (a) (7) and (8),

asserting that she was not properly served with process, and that

the Complaint fails to state a meritorious claim for breach of

contract.

"The affidavit of service filed by plaintiff was prima facie

evidence that defendant was properly served with the summons and

complaint pursuant to CPLR 308 (2) " JP Morgan Chase Bank v Dennis,

166 AD3d 530 (1st Dept 2018). The affidavit states that the

summons and complaint was left with the concierge, who confirmed

that the location was Kleiman's dwelling or usual place of abode.

See NYSCEF Doc. No. 011.

Kleiman does not submit her own affidavit, but instead,

submits an affirmation from her daughter Diane Kleiman, who is an

attorney. In such affirmation, Diane Kleiman states that Kleiman

never resided at the location where process was served. Attached

to such affirmation is a letter to Kleiman, in which AmEx "confirms

[Kleiman' s] assignment of [her daughter] as Account Manager",

which letter is addressed to Kleiman at a different address. See

NYSCEF Doc. No. 008.

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The unsworn affirmation of Kleinman's daughter is

insufficient to rebut the presumption of service or to warrant a

further hearing on such issue. See JP Morgan Chase Bank, 166 AD3d

530 (1 st Dept 2018) ("To rebut this prima facie showing, defendant

was required to submit a sworn, nonconclusory denial of service or

swear to specific facts to rebut the statements in the process

server's affidavit").

Moreover, Diane Kleinman identifies herself as an attorney

and it is unclear whether or not as "Account Manager" she is the

real party in interest in this action. Therefore, her use of an

affirmation, without the complete declaration "which may include

a fine or imprisonment, that the foregoing is true, and I

understand that this document may be filed in an action or

proceeding in a court of law", effective January 1, 2024, or

without a notary public acknowledgement, effective before January

1, 2024, pursuant to CPLR 2106, is not permitted. See Household

Finance Realty Corp of New York v Cioppa, 153 AD3d 908, 911 (2d

Dept 201 7) .

Finally, as argued by AmEx, the allegations of its complaint

are sufficient to state a cause of action against Kleiman for

breach of the credit agreement. In any event, the court may

consider the Affidavit of AmEx's Assistant Custodian of Records,

as to such Custodian's assertions that AmEx performed under the

credit agreement. See Leon v Martinez, 84 NY2d 83, 88 (1994) and

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Grassi & Co., CPAS, P.C. v Honka, 180 AD3d 564, 565 (1st Dept

2020).

P- ~ .A - } ~ 20240906 l 64343DJ AME543 l 623A 7717E4 7CD8FFAC87F2E35A36F

9/6/2024 DATE DEBRA A. JAMES, J.S.C.

~ ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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