MBNA America Bank, N.A. v. Paradise

285 A.D.2d 586, 728 N.Y.S.2d 380, 2001 N.Y. App. Div. LEXIS 7607

Opinion

—In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Oshfin, J.), dated April 14, 2000, which denied its motion for summary judgment on the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof denying the motion and substituting therefor provisions granting those branches of the motion which were for summary judgment on the first cause of action and summary judgment on the issue of liability on the second cause of action; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine the amount of the attorney’s fee due to the plaintiff.

The evidence presented by the plaintiff established, prima facie, its entitlement to summary judgment on its first cause of action for the amount owed on the credit card it issued to the defendant (see, Greenwood Trust Co. v Houk, 277 AD2d 761; First Deposit Natl. Bank v Van Allen, 277 AD2d 858; Providian Natl. Bank v Forrester, 277 AD2d 582). In opposition, the defendant failed to present any evidence sufficient to raise a triable issue of fact as to his liability.

Pursuant to the credit card agreement, the plaintiff is entitled to a reasonable attorney’s fee and thus is entitled to recover on its second cause of action. However, as the proof submitted by the plaintiff’s attorney failed to establish the reasonableness of the fee requested, the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine the amount of the fee. O’Brien, J. P., S. Miller, Schmidt and Cozier, JJ., concur.