Judge Michael Ciaffa
Capital One Bank moved for summary judgment claiming debt on a credit card. The court noted that, once again, plaintiff’s moving papers failed to establish its prima facie entitlement to judgment against debtor Joseph. The complaint contained a single cause of action seeking judgment on an alleged account stated. Yet, the bank failed to show it mailed Joseph a statement that he retained for an unreasonable period of time without objection. The court stated the affidavit of Wandi Chamberlain had the “look and feel of a ‘robo-signed affidavit’” prepared in blank in advance without knowing the identity of the person who would sign it. Chamberlain’s affidavit noted she commenced work a mere two months before the date of her affidavit, thus given her limited time at the company, she was in no position to attest to the actual mailing of the statements or able to show her personal knowledge of the bank’s standard office practices for mailing statements to customers. The court ruled as plaintiff’s moving papers were insufficient and the bank failed to establish a necessary factual predicate for an account stated claim, the motion for summary judgment on the claim was denied. Also, as the complaint did not plead a contract breach claim, same was denied.
