MBNA America Bank, N. A. v. Brenner

May 27, 1997
Versions:239 A.D.2d 566
658 N.Y.S.2d 973
1997 N.Y. App. Div. LEXIS 5683

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated October 30, 1996, which, inter alia, granted the plaintiff’s motion for summary judgment in the principal sum of $15,863.38.

Ordered that the order is affirmed, without costs or disbursements.

Based on the documentary evidence submitted by the plaintiff and certain correspondence between the parties submitted by the defendant, we agree with the Supreme Court that there is no bona fide issue of fact that the defendant and his wife applied for and were issued the subject credit card charge account (see, Rotuba Extruders v Ceppos, 46 NY2d 223). Further, we agree that the defendant failed to raise a triable issue of fact as to whether the balance accrued on the credit card account was the result of unauthorized use of the account. Accordingly, summary judgment was properly awarded to the plaintiff.

We have considered the defendant’s remaining contentions and find them to be without merit. Miller, J. P., Ritter, Joy and Krausman, JJ., concur.