Judge Noach Dear
In a consumer credit action, American Express Bank FSB (Amex) sought $16,071 based on claims of breach of contract, account stated and unjust enrichment. These claims all allegedly stemmed from a credit card agreement between the parties, use of the resulting credit card, and defendant Zweigenhaft’s default on his obligations to pay Amex for such use. At trial, an Assistant Custodian of Records for Amex, Kier, was the only witness. As a result of Kier’s "rather mechanical responses" to Amex’s counsel’s "desultory reading of a script of questions and responses to objections," the court excluded each piece of the offered documentary evidence as hearsay. Zweigenhaft elected not to put on any witnesses or offer any evidence. The court determined that Kier’s testimony provided insufficient foundation to qualify the proposed exhibits as business records. Therefore, the court dismissed the complaint with prejudice, referring to the fact that Amex’s one witness testimony was directed solely to the admissibility of the proposed exhibits, which were all deemed inadmissible hearsay. Accordingly, the court added that Amex consequently presented no evidence.
