Practice point: The plaintiff made a prima facie showing of entitlement to
judgment as a matter of law on its breach of contract claiim by tendering sufficient evidence that there was
an agreement, which the defendant accepted by his use of a certain
credit card issued by the plaintiff and payments made thereon, and which
was breached by the defendant when he failed to make the required
payments.
The plaintiff also established prima facie
entitlement to judgment as a matter of law on its account stated claim by tendering sufficient evidence that it
generated account statements for the defendant in the regular course of
business; that it mailed those statements to the defendant on a monthly
basis; and that the defendant accepted and retained these statements for
a reasonable period of time without objection, and made partial
payments on them.
Student note: The appeal from the intermediate order must be dismissed because the
right of direct appeal therefrom terminated with the entry of judgment.
Case: Citibank (South Dakota), N.A. v. Keskin, NY Slip Op 06553 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Defective service and dismissal.
