First Natl. Bank of Omaha v Smith, 60 Misc 3d 1230(A) (Civ Ct 2018)( Grey, J., Richmond County)

Gregory Goodman
First Natl. Bank of Omaha v Smith, 60 Misc 3d 1230(A) (Civ Ct 2018)( Grey, J., Richmond County). Why even move under a breach of contract? An Account stated cause of action is easy to prove if the defendant fails to object to the debt. I am amazed that some creditors only move on a breach of contract. Once again, in this case, plaintiff fails to prove the existence of a contract in admissible form. So What? As long as they also pled an account stated, they just need a witness to regurgitate its boilerplate business records foundation and establish the statements/invoices were mailed [payments were partially made] and the defendant[s] did not object or contest the invoices/statements within a reasonable period of time.

1. Breach of [Credit Card] Contract: to establish a breach of contract, a plaintiff must submit sufficient evidence of a credit card agreement, which the defendant accepted by using the credit card and making payments, and that the agreement was breached by the defendant when it failed to make payments. The issuance of a credit card constitutes an offer of credit, and the use of the card constitutes acceptance of the offer. Here, the plaintiff failed to provide the credit card agreement in its moving papers leaves triable issues of fact as to whether a contract actually existed.

2. Account Stated/Business Records: A plaintiff must show that the defendant received the plaintiff’s statements and did not object after a reasonable period of time. In this case, Plaintiff demonstrated in admissible form, that it generated statements and mailed them to the defendant during the regular course of business, which the defendant accepted and retained without objection for a reasonable time prior to the commencement of this action. No matter how good your defense attorney is-that’s it- you are done!!!!!!
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