Elixir Capital, LLC v. Krayola Kid'z Childcare LLC
Opinion
Elixir Capital, LLC v Krayola Kid'z Childcare LLC 2025 NY Slip Op 31891(U)
May 20, 2025
Supreme Court, Kings County Docket Number: Index No. 534083/2024 Judge: Anne J. Swern
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
FILED: KINGS COUNTY CLERK 05/22/2025 10:03 AM INDEX NO. 534083/2024 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 05/22/2025
Atan IASTrial Term, Part 75 of the Supreme Cowt of the State of New York, Kings County, at the Courthouse located at 360 Adams Street, Brooklyn, New York on the20 th day ofMay2025
PRES ENT: HON.ANNEJ. SWBRN;lS.C.
ELIXIR CAPITAL, LLC, DECISION & ORDER IndexNo.: 534083/2024
Plaintiff(s),
Calendar No.: 15 & 54
-against-
Motion Seq.: 001 &002
KRAYOLA KID'Z CHILDCARE LLC d/lJ/aKRAYOLA IGD'Z CHILDCARE, and EBONYNIKKAA BRUNSON,
37-38 Defendant(s).
Recitation ofthe following papers as required by CPLR 2219(a):
Papers
Numbered
Notice of Motion, Affirmation, Affidavits and Exhibits (NYSCEF 23-31) .......... ,............ ,................................ l~ 2 Affirmation and Exhibits in Opposition (NYSCEF 34) ................... ,.. , ............... .3 Memorandum of Law in Reply (NYSCEF 39) .................................................... .4
Notice of Cross-Motion,ilifirmation , Affidavits and Exhibits (NYSCEF 33-3 7) ., ......... '., ...... ,..... , .......... ,....... , ......... ,.. ,5, 6 Affirmation, Memorandum of Law in Opposition (NYSCEF 38,...39) ................. ,7
Upon the foregoing papers and after oral argument; the decision and order ofthe Court is as Jo/lows:
This is an action to recover damages arising from defendants' alleged breach ofa Merchant Agreement for the pUJ:"chase of defendants' future receivables. The purchase>price was $35,000.00 less an origim1tion fee $2,500.00. (NYSCEF 27, p.3). The payments under the agreement were to be electronically debited from a designated account until the purchase price was fully paid (NYSCEF24> ,f7). It is alleged that defendantohlyremitted $1,834.50 of the sale
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proceeds as of l 1/2:l /24 when defendant denied plaintiff any further access to the account to debit the payments (id ,rm). Plaintiff has now movedfor summary judgment.
Defendant has served a cross-motion to dismiss complaint alleging, inter alia, that the merchant agreement is actually a loan charging usurious interest and therefore void ab initio. In ·opppsitiontopla.intiff's motion for summary judgment, defendantalleges·that plain:tiffbreached the agreement by debiting the account for an amount in excess of the 15 .1 7% interest rate (NYSCEF 37, fflS-16). It is also alleged thatplairttiff did offer defendant areconcili<1tion plil'suantto the terms of the Merchant Agreement (id ,r24). Law and Analysis
a) Summacy Judgment- CPLR § 3212 Summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320, [1986]). ''A party moving for summary judgment must make a prima facie ·showing. of entitlement to judgment as a matter oflaw, producing sufficient evidence
to· demonstrate the absence· of any material issue of fact,. However, .
a failure to· demonstrate .
a
prima fade entitlement to Sul11111ary judgment motion, requires a denial of the motion regardless of the adequacy of the opposing papers" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993 ], citing Atvarezv Prospect Hospital; 68 NY2d.324).· "Once this showing has been made, the-burden shifts to the noiimoving party to produce evidentiary proofin admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank; 100 NY2d 72, 81 [2003] and Alvarez v. Prospect Hospital, 68 NY2d 324).
The Court's only role upon a motion for summary judgment is to identify the existence of triable issues, and not to determine the merits of any such issues (Vega v Restarzi Construction Corp., 18 NY3d 499;505 [2012]) orthe credibility of the movant's versio11 of events (see.Xiang
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Fu He v Troon Management, Inc;; 34 NY3d 167, 175 [2019] [internal cit1tio11s omitted]). The Court must view the evidence in the light mostfavorable to the nonmoving party, affording them the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Shop & Stop, Inc'., 65 NY2d 625, 626 [1985]). The motion should be denied where the facts are in dispute, where different inferences may· be drawn froni the evidence, or where· the credibility of the witnesses is in question (see Cameron v City o/Limg Beach, 297 AD2d 773, 774 [2d Dept. 2002]).
b) Motion to Dismiss on Documentary Evidence - CPLR § 3211 (al lll "A motion pursuantto CPLR,§ 3211 [a] [l] to dismiss the complainton the ground that the action is barred by documentary evidence may be [appropriatelyl granted only where the documentary evidence utterly refutes the plarritiff's factual allegations, thereby conclusively establishing a defense, as a matter oflaw'' (Karpovich v City a/New York, 162 AD3d 996, 997 [2dDept 2018] citing Mawere v Landau, 130 AD3d 986, 987 [2d Dept 2015]; see also Beal Sdv. Bank v Sommer, 8 NY3d 318, 324 [2007] and Goshen v Mutual Life Insurance Co. ofN. Y., 98 NY2d 314, 326 [2002]). "To co11stitute 'docwn,entary' evidence, the evidence must be unambiguous, authentic, a11d undeniable, such as judicial records and documents reflecting out- of-court transactions such as mortgages, deeds, contracts; and other papers, the contents of which ate essentially undeniable" (Karpovich v City ofNew York, 162 AD3d at 997-998; see Prott v Lewin & Baglio; 150 AD3d 908, 909 [2d Dept 2017]). Affid~.vits submitted in support of such motion do not.qualifyas dpcumentary evidence: becau~e their "contep.ts can be controverted by
.other evidence, such as another a:ffida:yit" (Phil! ips v Taco Bell Corp., 152 AIJ3d 806; 807[2d Dept2017]; Pratt v Lewin & Bag/io, 150 AD3d 909).
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Plaintiffs.may submit affidavits -in opposition to a motion to. dismiss pursuant. to -CPLR § 3211 _.[a] [7] b1,1t the statutedoe_s not obligatethem to do ·so-to avoi4 ~1di$-missal (See Rov(Jllo·v Orofino Realty Co., 40 NY2d 633,635 [1976]). Therefore, plaintiffmay stand on the pleadings aloile·, ·"confident that its allegati9ns are sufficient to state all ofthe necessary ,elements of a cognizable t)ause ofactiorr' to survive a motion to dismiss under-CPLR§ 3:211 [a] [7] (id).
c) Motion to Dismiss, Failure to State a Cause of Action• CPLR§ 3211 [al [11 When determining a CPLR .§3211 .[a] [7] -motion, the Court must accept the "factual allegations in:the complairttas true and·"a~cord_plaintiffs ihe benefit.of every possible favorable inference and d,etermine only whether the facts as alleged :fit into any cognizable legaLtheoty'' (Lef)n vMdrtin_ezt, 84 NY2d 83, 88 [1994]), However, •~bare legal conclusions as well as factual claims _flatly contradicted by the··record are not entitled tO:.such consideration.-. :not are· legal _conclusions or factual claims which are inherently incredible" (Strunkv NY State Bd. of Electicms~ 126"AD3d 777; 778 [2d. Dept 20 i 5]).
When the parties submitevidentiaiy material outsjde the-pl~fidings. for the. Court's consideration and the motion is not converted to o_ne for summary juclgment, "the question becomes whet:lier the pieruler has· a cause of action., not wh~er the pleader-has stated one and,
unless it has been shown-that atriaterial .
fa:ct as. claimed by the ple@deris . not
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