| American Express Bank FSB v Najieb |
| 2015 NY Slip Op 01177 |
| Decided on February 10, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 10, 2015
Sweeny, J.P., Renwick, Moskowitz, Feinman, Kapnick, JJ.
14190 106634/10
v
Laila Najieb, etc., Defendant-Appellant, Byte Analysis, etc., Defendant.
Laila Najieb, appellant pro se.
Jaffe & Asher LLP, New York (David Joyandeh of counsel), for respondent.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about October 8, 2013, which denied defendant Laila Najieb's (defendant) motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion for summary judgment and to strike the answer, unanimously modified, on the law, to the extent of denying the motion to strike the answer, vacating the direction to enter judgment on default, and directing the Clerk to enter judgment for $24,797.86, the amount of the account stated, as set forth in the affirmation in support of plaintiff's cross motion, and otherwise affirmed, without costs.
The securitization of plaintiff credit card issuer's receivables did not divest it of its ownership interest in the account, and therefore did not deprive it of standing to sue to recover defendant's overdue credit card payments (see Citibank [South Dakota], N.A. v Carroll, 220 P3d 1073, 1076-1078 [Idaho 2009]; Tostado v Citibank [South Dakota], N.A., 2010 WL 55976, *2-*3, 2010 US Dist LEXIS 228, *5-*8 [WD Tex 2010]; Scott v Bank of America, 580 Fed Appx 56 [3d Cir 2014]; Shade v Bank of America, 2009 WL 5198176, *4, 2009 US Dist LEXIS 119320, *10 [ED Cal 2009], affd __Fed Appx__, 2011 WL 794605, 2011 US App LEXIS 4535 [9th Cir 2011]).
Plaintiff's submission of statements that were retained by defendants for several months without protest was sufficient to entitle plaintiff to judgment on its cause of action for an account stated.
However, we find that the motion court improvidently exercised its discretion in striking the answer for failure of the individual defendant to appear at a deposition directed by a compliance conference order for a date just over one week before the motion seeking such relief [*2]was brought. Plaintiff failed to show that the noncompliance was willful, contumacious or in bad faith (see Amini v Arena Constr. Co., Inc., 110 AD3d 414 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 10, 2015
CLERK