American Express Centurion Bank v. Williams
Opinion of the Court
In an action to recover the outstanding balance due on a credit card, the defendant appeals from (1) so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated November 23, 2004, as granted those branches of the plaintiffs motion which were for summary judgment based on an account stated and unjust enrichment, and denied his cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered February 28, 2005, which, upon the order dated November 23, 2004, is in favor of the plaintiff and against him in the principal sum of $32,131.59.
Ordered that the appeal from the order dated November 23, 2004, is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CELR 5501 [a] [1]).
Contrary to the defendant’s contention, the Supreme Court properly granted the plaintiffs motion for summary judgment on the cause of action for an account stated. The plaintiff established its entitlement to judgment as a matter of law by demonstrating, with evidence in admissible form, that it generated statements for the defendant in the regular course of business and mailed those statements to the defendant on a monthly basis from September 2002 through January 2003. The defendant accepted these account statements and retained them without objection for more than one year prior to the commencement of the action. Each statement indicated a balance due of $32,181.59.
In opposition to the motion, the defendant failed to raise a
The defendant’s remaining contentions are without merit. Crane, J.P., Luciano, Skelos and Lifson, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.