Plaintiff moves for summary judgment upon a claimed credit card debt. The motion is GRANTED only to the extent of finding defendant liable to plaintiff. An immediate trial is ordered on the amount of plaintiff's damages. CPLR 3212(c).

As demonstrated below, plaintiff's proof of damages depends upon the submission of electronic records of defendant's alleged indebtedness. Since plaintiff's proof on that issue does not lay a proper foundation for the submission of "reproductions" of plaintiff's electronic records of the indebtedness, plaintiff's motion must be DENIED, in part, and the issue of damages deferred to trial.

In this action by plaintiff, American Express Centurion Bank, defendant's answer admits he was the holder of an Optima Triumph Gold Card, but he denies owing the plaintiff "the amounts stated in the complaint" (answer, ¶ ¶ 3, 31). According to plaintiff's motion, defendant is indebted to plaintiff "in the sum of $14,115.64." Its proof of such indebtedness rests upon an affidavit from an Assistant Custodian of Records, Jennifer Hartje, in which Ms. Hartje claims "personal knowledge" of certain annexed "business records." [*2]

The affidavit at hand has the look and feel of a "robo-signed" affidavit that was "prepared in blank in advance of knowing who would sign the affidavit." See American Express Centurion Bank v. Bajek, 2010 NY Slip Op 52005, at fn. 2 (Sup Ct Orange Co.) (expressing concern whether plaintiff's affidavits involve "robosigning"). Just like in Bajek, the affidavit contains a "rubber stamped" opening sentence identifying Ms. Hartje as the affiant, followed by a general description of plaintiff's business record practices and a "fill in the blanks" statement of factsPAGE 2INDEX No.16489/10AMEX V. BADALAMENTIrespecting defendant's account. While suspicion of robo-signing "does not automatically indicate any impropriety," Bajek, supra, the Court's decision in Bajek gives this Court pause. Nevertheless, for purposes of this decision, the Court accepts, at face value, Ms. Hartje's representation that she has "personal knowledge" of certain aspects of defendant's account, including the fact that plaintiff suspended defendant's charge privileges due to his failure to make required payments.

However, upon closer examination of Ms Hartje's affidavit, it appears that much of her "knowledge" respecting the amount of defendant's indebtedness rests upon "business records" that are merely "reproductions" of parts of an "electronic file" (see Hartje affidavit, ¶ 13). The submission of such "reproductions" from an "electronic file," when made as part of a summary judgment motion (CPLR 3212), raises an interesting evidentiary issue under New York State law.

The Court begins by observing that summary judgment may not be granted unless the movant demonstrates its entitlement to judgment, as a matter of law, by tendering "evidentiary proof in admissible form." See Zuckerman v. City of NY, 49 NY2d 557, 562 (1980); quoting Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067-8 (1979); accord Mirvish v. Mott, 75 AD3d 269 (1st Dept 2010); Santanastasio v. Doe, 301 AD2d 511 (2d Dept. 2003); Rushmore Recoveries X, LLC v. Skolnick, 2007 NY Slip Op 51041 (Dist Ct Nassau Co.). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." Winegrad v. NYU Med. Center, 64 NY2d 851, 854 (1985); accord, Citibank v. Rahbar, 2007 NY Slip Op 33568 (Sup Ct NY Co.); Rushmore Recoveries X, LLC v. Skolnick, supra.

Applying this test, the Court finds, first, that plaintiff's motion includes legally sufficient proof, in admissible form, establishing defendant's liability to plaintiff for breach of contract (plaintiff's first cause of action). Notwithstanding the Court's reservations respecting possible "robosigning," the Court concludes that plaintiff's papers include enough evidence of defendant's breach as to shift the burden to him of raising a triable question as to liability. As a member of plaintiff's "Litigation Unit" Ms. Hartje alleges that her job requires her to have personal knowledge of certain important facts regarding "high balance account holders such as the defendant" (Hartje affidavit, [*3]

¶ 2). They include personal knowledge that defendant's charge privileges had been suspended because he "failed and refused to make payments" upon the account, thereby violating his agreement with plaintiff (Hartje affidavit, ¶ 21). In the absence of any proof from defendant contesting liability in toto, his liability is deemed established on this motion.

But a finding respecting defendant's liability still leaves open the issue of

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damages. On that issue, plaintiff again carries the burden of submitting "evidentiary proof in admissible form." The only proof of damages submitted by plaintiff comes from Ms Hartje. In paragraph 20 of her affidavit, she alleges that plaintiff sent monthly statements to defendant, "exhibiting all amounts due and owing by [defendant] on the Gold Card Account." Although copies of statements, covering a six month period (September 2009 - February 2010), are annexed to her affidavit (Ex. E), Ms. Hartje admits that the "statements" are merely "reproductions" of parts of an "electronic file."

In light of this acknowledgment, the Court must determine whether Ms. Hartje's affidavit lays a sufficient "business record" evidentiary foundation for the submission of "reproductions" of "electronic files" respecting defendant's account and the amount of his indebtedness. To answer the question, the Court looks to several sections of the law: CPLR 4518, CPLR 4539, State Technology Law 302, and State Technology Law 306. Read together, they set forth the foundational requirements for the submission of "evidentiary proof in admissible form" in a case where the "evidence" of an indebtedness is maintained only in an electronic format.

CPLR 4518 —— the "Business Record Rule" — sets forth the basic requirements for the introduction of an electronic business record into evidence. "An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record." CPLR 4518(a).

Such a record, of course, must also meet the test for admissibility of business records generally: "any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum of record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that 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). [*4]

State Technology Law §302 defines "Electronic record" as "information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities."

State Technology Law §306 goes on to add additional requirements under the heading "Admissibility into evidence." "In any legal proceeding where the

provisions of the civil practice law and rules are applicable, an electronic record or

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electronic signature may be admitted into evidence pursuant to the provisions of article forty-five of the civil practice law and rules including, but not limited to section four thousand five hundred thirty-nine of such law and rules."

Finally, CPLR 4539(b) includes the following language: "A reproduction created by any process which stores an image of any writing, entry, print or representation and which does not permit additions, deletions, or changes without leaving a record of such additions, deletions, or changes, when authenticated by competent testimony or affidavit which shall include the manner or method by which tampering or degradation of the reproduction is prevented, shall be as admissible in evidence as the original."

As one leading treatise explains: "The purpose of CPLR 4539(b) is to acknowledge and accept existing and future technologies which accomplish image storage by a variety of different methods, while also recognizing that some of those technologies permit tampering with stored images in ways that were not feasible when photocopies or microfilm images were involved ..." Weinstein-Korn-Miller, New York Civil Practice, ¶ 4539.11. Stated another way, electronically stored images "cannot qualify as a reproduction of an original made in the ordinary course of business unless the enterprise in question has incorporated into its technology security measures sufficient to guarantee that any such alteration leaves an audit trail which at least indicates that a change has been made." Id.

In the case at bar, Ms. Hartje's affidavit provides only some of the information that plaintiff must submit to lay a proper foundation for introduction of the annexed "reproductions" of plaintiff's electronic records respecting defendant's indebtedness. It appears from her description of plaintiff's business practices that plaintiff's employees record account transactions in the regular course of its business, and that it was the regular course of plaintiff's business to record such transactions at or about the time they occurred. CPLR 4518(a). She swears that the exhibits are "true and faithful reproductions" of parts of defendant's electronic file. See CPLR 4518(a). She also describes, albeit in cursory terms, the manner by which electronic account records are stored, maintained and retrieved: such records are "maintained on optical discs in an electronic format" (Hartje affidavit, ¶ 4) and can be "reproduced . . . by . . . [*5]authorized American Express representatives" (Hartje affidavit, ¶ 12).

Accepting all the above as true, Ms. Hartje's knowledge of plaintiff's business practices is nonetheless limited. She works for the company's "Litigation Unit" in New York on matters involving "account holders who are involved in active litigation with American Express" (Hartje affidavit, ¶ 2). Plaintiff's business, in contrast, ranges across the United States. According to plaintiff's account statements, defendant's

payments were sent to an address in Newark, New Jersey. Customer service for the account was located in El Paso, Texas. American Express Centurion Bank, itself, is

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located in Utah. Presumably, representatives of plaintiff in each of these locations had access to defendant's electronic records, and absent evidence to the contrary, the Court assumes that representatives had the ability to make and revise electronic entries on those records from time to time.

Significantly, although Ms. Hartje avers that the copies generated for the instant motion are "exact duplicates of the documents delivered to the card member" (Hartje affidavit, ¶ 12), her affidavit fails to establish "when, how or by whom" plaintiff's exhibits were created. Such proof is ordinarily required to lay a proper foundation for the submission of electronic records in paper form. See Palisades Collection, LLC v. Kedik, 67 AD3d 1329, 1331 (4th Dept. 2009). More importantly, she does not describe whether plaintiff's electronic record keeping system permits "additions, deletions or changes without leaving a record of such additions, deletions or changes." Nor does her affidavit address "the manner or method" (if any) by which "tampering or degradation" of the reproduced records is prevented. See CPLR 4539(b). The absence of such evidence is telling. Without an affidavit from an individual "with personal knowledge of the care and maintenance" of plaintiff's electronic business records, cf. Education Resources Institute, Inc. v. Piazza, 17 AD3d 513, 514 (2d Dept 2005), plaintiff cannot satisfy its burden, under State Technology Law 306 and CPLR 4539(b), of laying a proper foundation for submitting the subject reproductions. Plaintiff accordingly has failed to set forth "evidentiary proof in admissible form" respecting the business records that document the amount of defendant's alleged indebtedness. See Palisades Collection, LLC v. Kedik, supra.

Consequently, to the extent that plaintiff seeks judgment, as a matter of law, upon its claim that defendant owes it $14,115.64, as established by the account statements submitted with Ms. Hartje's affidavit, plaintiff's motion must be denied. Without a proper foundation for the submission of the "reproductions" in question, plaintiff has not met its prima facie burden of proof on damages, requiring denial of its request for summary determination of its damages.

On the other hand, as noted above, no triable issues on liability are presented. Therefore, as permitted by CPLR 3212(c), the Court concludes that an [*6]immediate trial on damages is warranted, at which plaintiff will be afforded the opportunity to fill the gaps in its proof respecting its claimed damages. Provided that Ms. Hartje or another witness can provide proper foundation evidence that satisfies the requirements of State Technology Law 306 and CPLR 4539(b), the plaintiff will have met its burden of establishing, prima facie, its claim for monies owed on defendant's credit card account. However, in that event, defendant may, if he chooses, oppose plaintiff's claims as to damages through cross-examination and/or submission of any other competent evidence.

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Finally, it remains plaintiff's burden to prove its entitlement, under New York and federal law, to the interest and penalties sought in the account statements. The account statements, on their face, include interest charges and fees that appear to exceed New York's legal limits. Upon appropriate proof that plaintiff, a state chartered Utah Bank, strictly complied with the letter of the law governing out of state banks, it may obtain judgment for the amount claimed, in full. Compare Chase Bank v. Fisher, 28 Misc 3d 440 (Dist Ct Nassau Co. 2010), with Citibank v. Hansen, 28 Misc 3d 195 (Dist Ct Nassau Co. 2010). That issue, also, should be addressed by plaintiff at the upcoming trial, which shall be held on January 24, 2011.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: December 21, 2010