Capital One Bank (USA), N.A. v Manjarrez, 62 Misc 3d 1204(A) (Civ Ct 2018)-For some reason, plaintiff only pled breach of contract and did not pled account stated. Case law shows that proving an account stated is very easy and often granted. Proving a breach of contract tends to be more difficult, because you must produce and get into evidence the contractual agreement. Here the plaintiff failed to prove the existence of the contract. On the other hand, an account stated is easy to prove. Even though the plaintiff failed to plead the accounted stated, the court was willing to consider it. Yet, plaintiff failed to even prove an accounted stated by failing to prove that that it generated account statements for the defendant in the regular course of business, that it mailed those statements to the defendant on a monthly basis, and that the defendant accepted and retained these statements for a reasonable period of time without objection, and made partial payments thereon.
1. Breach of [Credit Card] Contract: Plaintiff failed to prove the essential elements in an action for breach of contract “are the existence of a contract, the plaintiff's performance pursuant to the contract, and damages resulting from the breach.
2. Account Stated: plaintiff’s affiant never states that the statements at issue were mailed to defendant and that defendant failed to object to them. Thus, substantively, the record is bereft of proof warranting judgment on a cause of action for account stated.