JPMorgan Chase Bank, N.A. v Selka 2024 NY Slip Op 30613(U) February 21, 2024 Supreme Court, Kings County Docket Number: Index No. 518904/2021 Judge: Francois A. Rivera 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. FILED: KINGS COUNTY CLERK 02/27/2024 11:53 AM INDEX NO. 518904/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/27/2024
AtIAS Term, Part 52 of the Supreme Court of the State of New York, County of Ki11gs; located atJ60 Adams Street; Brooklyn, New York 11201 on the 21 th day .of February 2024.
HONORABLE FRANCOIS A. RIVERA ________________x JPMORGAN CHASEBANK, NA, DECISION & ORDER Index No. 518904/2021
Plaintiff --against-
LEAHSELKA, Defendant ---------'----------------'x Recitation of the papers considered on the notice of motion fikd by plaintiff JPMorgan Chase Batik, N.A. oi1 At1gust 11, 2023, under motion sequenceone, for ari order plrrsuant to CPLR § 3212, granti ng.summmy judgment in plaintiff's favor against defendant Leah Selka and striking the defendant's affirmative defenses asserted in the answer. Plain.tiff Leah Selkahas opposed the motion.
-Notice of motion ~Statement of matel'ial facts -Affirmation in support -Affidavit insupport Exhibits A-G -Affirmation in opposition -Affidavit in opposition Exhibits A-B -Affirmation in reply -Response to plaintiff's statement ofmatel'ial facts
BACKGROUND
.On July 29, 2021, plaintiff commenced the instant action by filing a summons and
complaint with the King's County Clerk's office (KCCO). On January 13, 2022, the defendant
interposed and filed a verified answer. The compiairtt alleges seven allegations offact irt support,
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of two causes of action. The first cause of action is for a breach of an agreement The seconq
cause.of action is for an account stated.
The complaint alleges the following salient facts. Plaintiff is a National Bank that
administered an accornit used by the.defendant. The defendant breached the agreement
governing the account by failing to n1ake periodic payments as required. The current account
balance due and owing to the plaintiff is $52,261.61. In accordance with federal regulations,
monthly periodic statements for the account were providedtothe defendant and kept by the
defendant without appropriate.objection. Based on the plaintiff'srecotds there are no imresolved
billing disputes related to the accoll11L
LAWAND APPLICATION
It is well established that surrimary judgment may be granted only when no triable issue
of fact exists (AlvarezvProspectHospital, 68 NY2d 320, ·324 [1986]). The burden is upon the
moving party to make a prima facie showing that heor she is entitled to summaryjudgmentas a
matter of law by presenting evicl,ence irt admissible form denionstrating the absence of:matetial
facts (Giuffrida . v Citibank Corp.,.. 100 NY2d 72; 81 [2003]).
Afailure to make that showing requires the denial of the summaryjudgmentmotion,
regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1064
[I 993]). Ifa primafacie shov,,fog has been made, the burden shifts to the opposing party to
produce evidenti ary proof sufficient to establish the existence of material issues of fact (Alvarez,
68NY2dat324).
Pursuant to CPLR 3 212 (b), a. cotttt will grant a rriotfon ·for summary judgment upon a
determination that the inovant1s papers justify holding, as a imittet of law; that there is no defense
to the cause of action qr that the cause qf action or defense has no merit. Furthermore, all the
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evidence must be viewed in the light most fayorable to the opponent of the motion (Marine
lvfidland Bank v Dino & Artie'sAutomqtic Transmission Co., 168 AD2d 610 [2d Dept 1990]).
Plaintiff seeks summary judgment on its causes of action for breach ofcontract and to
recover on an accountstated. The essential elements ofa cause of action to recover damages for
breach of contract are the existence of a contract, the plaintiffs performance pursuant to the
contract, the defendant's breach ofits contractual obligations, and damages resulting from the.
breach (Paie v Aalbue, 222 AD. 3d 769 [2d Dept 2023]). An account stated requires ''an
agreement between parties to an account based upon prior transactions between them with
respect to the co1Tectness of the accoui1titems and balance due" (D & NLendirig, LLC v Tachlis
Corp., 221 AD3d 954, 955 [2d Dept2023JquotirtgF!eetwood14gency, Inc; v Verde Elec. Corp;, . .. . .
85AD3d 850, 851 [2d Dept 2011 fr
In the case at bal',the only sworn testimony submitted by the plaintiff in support ofthe
motion was an affirm!ltion of John J. Sheerin, its counsel (hereinafter 'Sheerin), and a11 affidavit
of Damina Jovell, an authorized signing.officer for the plaintiff (hereinafter JoveU). Sheetin's
affiimation demonstrates no personal knowledge: of any of the transactional facts alleged in the
complaint. . An attorney's affirmation that is not based upon. personal knowledge isuf no probative
at evidentiary significance (Nerayojf v Khorshad, 168 AD3d 866, 867 [2d Dept 2019], quoting
Warrington v Ryder Truck Rental, Inc., 35 AD3d 455,456 [2dDept 20061). Sheerin's affirmation
refers to the affidavit of Jovell and the exhibits referenced in Jovell's affidavitto support the
motion.
Jovell's affidavit contains the following averred facts,among others. The defendant
opened an account with the plaintiff at its predecessor fot the purpose of obtaining an extension
ofcrediton Febrnary3, 2006. Plaintiff provided defendant with the cardmember agreement
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("CMA'')-.governing the Ace.cunt, which contained the terms ~nd conditions.applicable to
defendap.t'·-~ account. Itis.platniiff s regular practice-to, generate and provide, customers with
written.notification ofchanges to the terms and conditions C1Change in Termsi 1) .contained in the
CMA. After opening the a¢count, defendant did tise or authodze the use ofthe account fotthe
-~cquisition ofgoods; services., or cash advance$. Defendant.failed to make .the required
p1;1.yment_s._oi1 the accoµnhind-a !'.le:mand for payment has .be_~n made.
Plaintiff provided d.efendant with periodic •billing ·st_atemepts for the account; which
described the charges, interest, fees, payments, credits; and the amountdue.on.the account The
last payment on the account was 6h or about March 20, 2020,-iii theamountof $1,068.00. The
fast charge, balance transft;r;. cash advance, at othet debit that defendaiit initi_ated -amt charged to
the account was on or ab.out Mai-ch24; 2020, iii the ari1otm·t of $22.83. Tht;l account charged off
on January 31, 2021. The total amount ofcredits andpayments since charge off is $0 .00. Credit
has been given to defendant for alljust and lawful offsets; payments; and credits a:s of tl1e signing
of-i:his affidavit.
Jovell 's affidavit "does lay .a proper foundation for admissimi as business records of the
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JPMorgan Chase Bank, N.A. v Selka 2024 NY Slip Op 30613(U) February 21, 2024 Supreme Court, Kings County Docket Number: Index No. 518904/2021 Judge: Francois A. Rivera 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. FILED: KINGS COUNTY CLERK 02/27/2024 11:53 AM INDEX NO. 518904/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/27/2024
AtIAS Term, Part 52 of the Supreme Court of the State of New York, County of Ki11gs; located atJ60 Adams Street; Brooklyn, New York 11201 on the 21 th day .of February 2024.
HONORABLE FRANCOIS A. RIVERA ________________x JPMORGAN CHASEBANK, NA, DECISION & ORDER Index No. 518904/2021
Plaintiff --against-
LEAHSELKA, Defendant ---------'----------------'x Recitation of the papers considered on the notice of motion fikd by plaintiff JPMorgan Chase Batik, N.A. oi1 At1gust 11, 2023, under motion sequenceone, for ari order plrrsuant to CPLR § 3212, granti ng.summmy judgment in plaintiff's favor against defendant Leah Selka and striking the defendant's affirmative defenses asserted in the answer. Plain.tiff Leah Selkahas opposed the motion.
-Notice of motion ~Statement of matel'ial facts -Affirmation in support -Affidavit insupport Exhibits A-G -Affirmation in opposition -Affidavit in opposition Exhibits A-B -Affirmation in reply -Response to plaintiff's statement ofmatel'ial facts
BACKGROUND
.On July 29, 2021, plaintiff commenced the instant action by filing a summons and
complaint with the King's County Clerk's office (KCCO). On January 13, 2022, the defendant
interposed and filed a verified answer. The compiairtt alleges seven allegations offact irt support,
Page 1 of5
1 of 5 [* 1] FILED: KINGS COUNTY CLERK 02/27/2024 11:53 AM INDEX NO. 518904/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/27/2024
of two causes of action. The first cause of action is for a breach of an agreement The seconq
cause.of action is for an account stated.
The complaint alleges the following salient facts. Plaintiff is a National Bank that
administered an accornit used by the.defendant. The defendant breached the agreement
governing the account by failing to n1ake periodic payments as required. The current account
balance due and owing to the plaintiff is $52,261.61. In accordance with federal regulations,
monthly periodic statements for the account were providedtothe defendant and kept by the
defendant without appropriate.objection. Based on the plaintiff'srecotds there are no imresolved
billing disputes related to the accoll11L
LAWAND APPLICATION
It is well established that surrimary judgment may be granted only when no triable issue
of fact exists (AlvarezvProspectHospital, 68 NY2d 320, ·324 [1986]). The burden is upon the
moving party to make a prima facie showing that heor she is entitled to summaryjudgmentas a
matter of law by presenting evicl,ence irt admissible form denionstrating the absence of:matetial
facts (Giuffrida . v Citibank Corp.,.. 100 NY2d 72; 81 [2003]).
Afailure to make that showing requires the denial of the summaryjudgmentmotion,
regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1064
[I 993]). Ifa primafacie shov,,fog has been made, the burden shifts to the opposing party to
produce evidenti ary proof sufficient to establish the existence of material issues of fact (Alvarez,
68NY2dat324).
Pursuant to CPLR 3 212 (b), a. cotttt will grant a rriotfon ·for summary judgment upon a
determination that the inovant1s papers justify holding, as a imittet of law; that there is no defense
to the cause of action qr that the cause qf action or defense has no merit. Furthermore, all the
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evidence must be viewed in the light most fayorable to the opponent of the motion (Marine
lvfidland Bank v Dino & Artie'sAutomqtic Transmission Co., 168 AD2d 610 [2d Dept 1990]).
Plaintiff seeks summary judgment on its causes of action for breach ofcontract and to
recover on an accountstated. The essential elements ofa cause of action to recover damages for
breach of contract are the existence of a contract, the plaintiffs performance pursuant to the
contract, the defendant's breach ofits contractual obligations, and damages resulting from the.
breach (Paie v Aalbue, 222 AD. 3d 769 [2d Dept 2023]). An account stated requires ''an
agreement between parties to an account based upon prior transactions between them with
respect to the co1Tectness of the accoui1titems and balance due" (D & NLendirig, LLC v Tachlis
Corp., 221 AD3d 954, 955 [2d Dept2023JquotirtgF!eetwood14gency, Inc; v Verde Elec. Corp;, . .. . .
85AD3d 850, 851 [2d Dept 2011 fr
In the case at bal',the only sworn testimony submitted by the plaintiff in support ofthe
motion was an affirm!ltion of John J. Sheerin, its counsel (hereinafter 'Sheerin), and a11 affidavit
of Damina Jovell, an authorized signing.officer for the plaintiff (hereinafter JoveU). Sheetin's
affiimation demonstrates no personal knowledge: of any of the transactional facts alleged in the
complaint. . An attorney's affirmation that is not based upon. personal knowledge isuf no probative
at evidentiary significance (Nerayojf v Khorshad, 168 AD3d 866, 867 [2d Dept 2019], quoting
Warrington v Ryder Truck Rental, Inc., 35 AD3d 455,456 [2dDept 20061). Sheerin's affirmation
refers to the affidavit of Jovell and the exhibits referenced in Jovell's affidavitto support the
motion.
Jovell's affidavit contains the following averred facts,among others. The defendant
opened an account with the plaintiff at its predecessor fot the purpose of obtaining an extension
ofcrediton Febrnary3, 2006. Plaintiff provided defendant with the cardmember agreement
Page 3 of 5
3 of 5 [* 3] FILED: KINGS COUNTY CLERK 02/27/2024 11:53 AM INDEX NO. 518904/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/27/2024
("CMA'')-.governing the Ace.cunt, which contained the terms ~nd conditions.applicable to
defendap.t'·-~ account. Itis.platniiff s regular practice-to, generate and provide, customers with
written.notification ofchanges to the terms and conditions C1Change in Termsi 1) .contained in the
CMA. After opening the a¢count, defendant did tise or authodze the use ofthe account fotthe
-~cquisition ofgoods; services., or cash advance$. Defendant.failed to make .the required
p1;1.yment_s._oi1 the accoµnhind-a !'.le:mand for payment has .be_~n made.
Plaintiff provided d.efendant with periodic •billing ·st_atemepts for the account; which
described the charges, interest, fees, payments, credits; and the amountdue.on.the account The
last payment on the account was 6h or about March 20, 2020,-iii theamountof $1,068.00. The
fast charge, balance transft;r;. cash advance, at othet debit that defendaiit initi_ated -amt charged to
the account was on or ab.out Mai-ch24; 2020, iii the ari1otm·t of $22.83. Tht;l account charged off
on January 31, 2021. The total amount ofcredits andpayments since charge off is $0 .00. Credit
has been given to defendant for alljust and lawful offsets; payments; and credits a:s of tl1e signing
of-i:his affidavit.
Jovell 's affidavit "does lay .a proper foundation for admissimi as business records of the
amendments to the credit card agreemenUind the monthly billing statert1ents (see CPLR 4518[a];
PennyMac Corp. v ,Arora, 184 AD3cl 652, 655 [2d Dept.2020]). However, no evidence that those
documents were mailed to·the defendantwasprovided. Jovell did not attest to.personal
._k:nowl~qg~ of the mailings or·of.standru:d office practice and-procedure designed to ensure that
items were propel'ly addressed and ma.Iled"~md the business rectii:ds.did1i.otev1hcethe mailing of
the a:ccountdocuments (see Deutsche BankNatL Trust Co. v Dennis, 181 A.D.3d 864, 866 [2d
Dept 2020]; Citibank, N.A, v. Conti,,Scheurer, 172 AD3d 17, 21 [2d Dept 2019]).
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Absent evidence that the billing statements were mailed to the defendant, the plaintiff
failed to establish its prima facie entitlementto judgment as a matter of law on the cause of
action tu recover on an account stated c~ee Morrison Cohen Singer & Weinstein, LLP v Brophy,
19 AD3d 161, 162 [2d Dept 2005]) .. Similarly, absent evidence that the amendments to the credit
card agreement were mailed to the defendant, the plaititifffailed to establish its prima facie
entitlement to judgment as a matter of law on the bteach of contract cause of action (~:ee
Deutsche Bank Nat/; Trust Co. v Dennis; 181 AD3d 864, 866 [2d Dept 2020]; Citibank, NA. v
Conti~Scheurer, 172AD3d 17, 21 [2d Dept 2019]).
CONCLUSION
The motion by plaintiff JPMorgan Chase Bank, N.A. for mi. order pursrtantto
CPLR § 3212, grantingsummaryjudgment in plaintiff's favor against defendant Leah Selka and
striking the defendant's affirmative defenses is denied.
The foregoing constitutes the decision and order of this Court
ENTER: 3~ A-~ J.S.C. ~ HON. FRANCOIS A. RI. ERA'
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