Trial
Assuming that, after all of the pleadings, discovery and motions are done, the case doesn’t get dismissed, result in a judgment for the plaintiff, or get settled, the case will move forward to an actual trial. For the most part, credit card cases are tried before a judge and not a jury. (Sometimes, courts have “mediators” who will meet with each side to see whether a settlement can be effectuated before sending the case out to trial).
The main question presented to the trial court is: Did the plaintiff make out a prima facie case based upon credible proof in admissible form? If so, then the next question the trial court has to answer is: Did the defendant prove a defense which rebuts that case? If not, then the court is going to grant a judgment in favor of the plaintiff. If so, then the case will be dismissed after trial — finally and forever. See, for example, Staten Island N.Y. CVS, Inc. v. Gordon Retail Dev. LLC, 57 AD3d 760 [2 Dept. 2008].
When the plaintiff puts forth as evidence the various documents constituting its case, including the account application, agreement, and statements, those documents must be admitted into evidence by the judge. Account statements must be authenticated as “business records” under CPLR 4518(a). This is the process where someone on behalf of the plaintiff testifies about being the custodian of the records, how the records were created, and how they were maintained.
As for business records, it must be shown that they were made in the regular course of business and reflected a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business, made pursuant to established procedures for the routine making of such a record, and made at the time of the acts, transactions, occurrences or events described therein or within a reasonable period of time afterwards. People v. Cratsley, 86 NY2d 81 [1995].
The trial court (whether by judge or jury) can determine whether the witnesses presented are credible. Brennan v. Bauman & Sons Buses, Inc., 107 AD2d 654 [2 Dept. 1985].
