Summary
In Portfolio Recovery Assoc. v. Lall, 127 A.D.3d 576, 8 N.Y.S.3d 101 (1st Dept.2015), cited by the majority, “self authentication” of the account statements was permitted at trial, in which there was an abundance of evidence offered including the defendant's admission that he used the credit card, and, significantly, there was testimony from the plaintiff's own employee, rather than here, used in a summary judgment motion, to deprive defendant of a trial, where the sole “proof” offered was via affidavit, by a non-employee “Legal Specialist”.
Summary of this case from Capital One Bank (Usa) v. KoralikOpinion
14873, 570278/13
04-21-2015
PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff–Respondent, v. Richard LALL, Defendant–Appellant. Professors of Evidence at Fordham University School of Law, Albany Law School, Camba Legal Services, Inc., Legal Services NYC, MFY Legal Services, Inc., New Economy Project, Queens Volunteer Lawyers Project, Inc., The Financial Clinic, The Legal Aid Society, Schlanger & Schlanger, LLP, The Bromberg Law Office, P.C., The Law Office of Ahmad Keshavarz, DC 37 Municipal Employees Legal Services, Lincoln Square Legal Services, Inc., and St. Vincent de Paul Legal Program, Inc., Amici Curiae.
New York Legal Assistance Group, New York (Shanna Tallarico of counsel), for appellant. Selip & Stylianou, LLP, Woodbury (David Szalyga of counsel), for respondent. Lincoln Square Legal Services, Inc., New York (Ian Weinstein of counsel), for Professors of Evidence at Fordham University School of Law and Albany Law School, amici curiae, and (Marcella Silverman of counsel), for CAMBA Legal Services, Inc., Legal Services NYC, MFY Legal Services, Inc., New Economy Project, Queens Volunteer Lawyers Project, Inc., The Financial Clinic, The Legal Aid Society, Schlanger & Schlanger, LLP, The Bromberg Law Office, P.C., The Law Office of Ahmad Keshavarz, DC 37 Municipal Employees Legal Services, Lincoln Square Legal Services, Inc., and St. Vincent de Paul Legal Program, Inc., amici curiae.
New York Legal Assistance Group, New York (Shanna Tallarico of counsel), for appellant.
Selip & Stylianou, LLP, Woodbury (David Szalyga of counsel), for respondent.
Lincoln Square Legal Services, Inc., New York (Ian Weinstein of counsel), for Professors of Evidence at Fordham University School of Law and Albany Law School, amici curiae, and (Marcella Silverman of counsel), for CAMBA Legal Services, Inc., Legal Services NYC, MFY Legal Services, Inc., New Economy Project, Queens Volunteer Lawyers Project, Inc., The Financial Clinic, The Legal Aid Society, Schlanger & Schlanger, LLP, The Bromberg Law Office, P.C., The Law Office of Ahmad Keshavarz, DC 37 Municipal Employees Legal Services, Lincoln Square Legal Services, Inc., and St. Vincent de Paul Legal Program, Inc., amici curiae.
TOM, J.P., FRIEDMAN, RENWICK, MOSKOWITZ, DeGRASSE, JJ.
Opinion
Order of the Appellate Term of the Supreme Court, First Department, entered on or about October 15, 2013, which affirmed a judgment, Civil Court, Bronx County (Mitchell J. Danziger, J.), entered April 18, 2012, after a nonjury trial, in plaintiff's favor, unanimously affirmed, without costs.
Plaintiff's proof of the underlying debt obligation was shown through defendant's testimony that he used the credit card issued by plaintiff's assignor and by the self-authenticating account statements (see Merrill Lynch Bus. Fin. Servs. Inc. v. Trataros Constr., Inc., 30 A.D.3d 336, 819 N.Y.S.2d 223 [1st Dept.2006], lv. denied 7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006] ). Evidence of the assignment of defendant's account was the affidavit of sale, which, although created by the assignor, was properly introduced as a business record through the testimony of plaintiff's employee (see Landmark Capital Invs., Inc. v. Li–Shan Wang, 94 A.D.3d 418, 419, 941 N.Y.S.2d 144 [1st Dept.2012] ). Plaintiff's reliance on documents of this type was a sufficient basis on which to permit its employee to lay the foundation for the admission of the affidavit of sale; contrary to defendant's contention, it was not necessary that there be a special relationship between plaintiff and its assignor.
We decline to consider defendant's argument, raised for the first time on appeal, that plaintiff failed to supply the best evidence of the assignment of the account.