Uni Serv Corp. v. Vitiello

• Decision Date: 12 April 1967
• Citation: 53 Misc.2d 396,278 N.Y.S.2d 969
• Court: New York City Court
• Parties: UNI SERV CORPORATION, Plaintiff, v. Sam VITIELLO and Madeline Vitiello, Defendants.

Page 969

278 N.Y.S.2d 969

53 Misc.2d 396

UNI SERV CORPORATION, Plaintiff, v. Sam VITIELLO and Madeline Vitiello, Defendants.

Civil Court of the City of New York, Queens County, Trial Term, Part III.

April 12, 1967.

Venitt & Adler, New York City, Fredric Lee Adler, New York City, of counsel, for plaintiff.

Fred Gold, Jamaica, for defendants.

ABRAHAM A. BERRY, Judge.

Plaintiff sues to recover the sum of $770.71 for merchandise purchased on presentation of a credit card issued by plaintiff to defendants.

Originally an application for the credit card was made by defendant Madeline Vitiello. The card was issued in the name of her husband, defendant Sam F. Vitiello. He acknowleged that he had authorized his wife to obtain the credit card, that he knew of its existence, and that purchases were made in his name. Prior to October 15, 1964, defendant conceded having made purchases on which there was a balance due plaintiff in the sum of $85.30. On that day, her purse was stolen including the contents, amongst which was the credit card in question. On October 15, three purchases were made by the thief, and on October 16 and 17, 18 additional purchases were made amounting in all to the sum of $685.41.

Immediately upon discovering the loss of the purse, the police were notified. A detective from the local precinct called at defendants' premises and advised them to notify plaintiff of the loss of the card. Defendant made a telephone call to plaintiff's place of business at which time they were instructed to send a written communication which they did on October 18, 1964.

The application, in effect, a contract between the parties, was received in evidence. It provided:

'If card holder is a married woman, Uni Serv, at its option, may carry card holder's account in husband's name upon responsibility of husband and wife.'

Amongst other provisions, it contained the following:

'If UNI-CARD is stolen or lost, card holder will notify UNI SERV in writing, and until UNI SERV received such notification, card holder will continue to be responsible for any use of the card.'

The application also contained the following: 'THE AMOUNT OF CREDIT APPLIED FOR UNDER THIS PLAN IS:' Underneath this line is 'Check One.' Then follow boxes which contain the following '$250, $500, $750, $1,000, or fill in higher amount.' The check mark is in the box alongside the sum of $250.

It was established at the trial that the portion of the application calling attention to the obligation if the card was stolen or lost was in 8-point Futura Light with 8 point Futura Demi-Bold. The term demi-bold has reference to the type used. It is sufficiently outstanding so that attention is called to its existence on the application contract.

Section 512 of the General Business Law was passed by the Legislature in 1961 (Chap. 549) and became effective January 1, 1962. It reads as follows:

'A provision to impose liability on an obligor for the purchase or lease of property or services by use of a credit card after its loss or theft is effective only if it is conspicuously written or printed in a size at least equal to eight point bold type either on the card, or on a writing accompanying the card when issued or on the obligor's application for the card, and then only until written notice of the loss or theft is given to the issuer. Such a provision either in a credit card issued prior to the effective date of this article, or in a writing accompanying such a card when issued, or in the obligor's application for such a card is effective, on or after the effective date of this article, only if the issuer mails to the obligor, properly addressed, written notice of the provision conspicuously written or printed in a size at least equal to eight point bold type.'

Plaintiff relies on the recent case of Texaco, Inc. v. Goldstein, 34 Misc.2d 751, 755, 229 N.Y.S.2d 51, 55, affd. 39 Misc.2d 552, 241 N.Y.S.2d 495, in which the Court stated:

'The intent of the parties is that in the event of the issuee's or obligor's loss of his card, or it having been stolen, that he be required to treat his credit card with at least the same importance, or perhaps greater importance than he would with his currency. Assuming the defendant were to have lost some currency, he, alone bears the risk of loss, and his loss is fixed by the amount of currency he lost. Should he, however, lose his credit card, the amount of loss would not be fixed, and the risk of loss is not only borne by him, but also by the Company when he actually complies with the conditions of the issuance of the...