Palisades Collection, LLC v. Kedik
| Citation | 890 N.Y.S.2d 230,2009 NY Slip Op 08259,67 A.D.3d 1329 |
| Decision Date | 13 November 2009 |
| Docket Number | CA 08-02623 |
| Parties | PALISADES COLLECTION, LLC, Appellant, v. BARBARA KEDIK, Respondent. |
| Court | New York Supreme Court Appellate Division |
Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.), entered September 30, 2008 in an action for breach of contract and account stated. The order denied plaintiff's motion for partial summary judgment and granted defendant summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, as the alleged assignee of Discover Bank (Discover), commenced this action for breach of contract and account stated seeking to recover the balance owed on a credit card issued to defendant. Supreme Court denied in part plaintiff's motion for partial summary judgment dismissing seven of the affirmative defenses, reserved decision in part, and ordered plaintiff to provide evidence that it had standing. Following plaintiff's further submissions, the court concluded that plaintiff failed to provide admissible evidence of its standing and sua sponte granted defendant summary judgment dismissing the complaint. We affirm.
To establish standing to sue, plaintiff was required to submit admissible evidence that Discover assigned its interest in defendant's debt to plaintiff (see generally Rockland Lease Funding Corp. v Waste Mgt. of N.Y., 245 AD2d 779 [1997]). Here, plaintiff submitted an affidavit from its agent with exhibits, including a printed copy of several pages from an electronic spreadsheet listing defendant's Discover account as one of the accounts sold to plaintiff. Contrary to the contention of plaintiff, the court properly determined that it failed to establish a proper foundation for the admission of the spreadsheet under the business record exception to the hearsay rule (see generally Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]).
A business record is admissible if "it was made in the regular course of any business and...it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR 4518 [a]; see generally People v Kennedy, 68 NY2d 569, 579-580 [1986]). "A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices...
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...and that it was made contemporaneously or within a reasonable time after the act or transaction. Palisades Collection, LLC v. Kedik , 67 A.D.3d 1329, 890 N.Y.S.2d 230 (4th Dept. 2009). Electronic spreadsheet listing defendant’s account as one of accounts sold to plaintif was insuicient to e......
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