Eminent Funding, LLC v. DNA USA Corp.

2026 NY Slip Op 30833(U)

• Court: New York Supreme Court, Kings County
• Decided: March 4, 2026
• Docket: Index No. 518890/2023
• Status: Unpublished
• Author: Anne J. Swern

Opinion

Eminent Funding, LLC v DNA USA Corp. 2026 NY Slip Op 30833(U) March 4, 2026 Supreme Court, Kings County Docket Number: Index No. 518890/2023 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.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.5188902023.KINGS.001.LBLX000_TO.html[03/16/2026 3:45:41 PM] FILED: KINGS COUNTY CLERK 03/04/2026 04:01 PM INDEX NO. 518890/2023 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/04/2026

At an IAS Trial Term, Part 75 of the Supreme Court of the State of New York, Kings County, at the Courthouse located at 360 Adams Street, Brooklyn, New York on the 4th day of March 2026.

P R E S E N T: HON. ANNE J. SWERN, J.S.C. =================================================== EMINENT FUNDING, LLC, DECISION & ORDER Index No.: 518890/2023 Plaintiff, -against- Calendar No.: 11

DNA USA CORP. DBA DNA LOGISTICS, Motion Seq. No.: 5 SYMMETRY TELECOM, INC, JOEL GIOVANNI CASTRO PINTO AKA JOEL PINTO,

Defendants. =================================================== Recitation of the following papers as required by CPLR 2219 (a): NYSCEF Papers Numbered 005 Notice of Motion and Supporting Documents and Affirmation in Opposition………………………………...120-131, 133, 148-149, 153

Upon the foregoing papers, the decision and order of the Court is as follows: Introduction

This action is for breach of contract and personal guarantee for the purchase of future

receivables. Plaintiff, EMINENT FUNDING, LLC (“plaintiff”), has now filed a motion pursuant to

CPLR § 3215 directing the Clerk to enter judgment in favor of plaintiff and against defendants DNA

USA CORP. DBA DNA LOGISTICS, SYMMETRY TELECOM, INC, and JOEL GIOVANNI

CASTRO PINTO AKA JOEL PINTO (“defendants”) for the amount demanded in the complaint,

$23,998.92, plus costs and statutory interest from June 28, 2023. The motion is granted.

Facts

On or about May 30, 2023, plaintiff and defendants entered into an agreement whereby

plaintiff agreed to purchase all rights to $14,999.00 of the corporate defendants’ future receivables.

Plaintiff asserts that in the agreement and as a condition to plaintiff’s purchase, the individual

defendant personally guaranteed all amounts owed to plaintiff. Plaintiff further asserts that it satisfied

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its obligation under the agreement by delivering to defendants $10,000.00, the purchase price for said

receivables. According to the agreement, defendants agreed to maintain one bank account approved

by plaintiff, from which defendants authorized plaintiff to make ACH withdrawals until the

purchased receivables were fully paid to plaintiff.1

Plaintiff asserts that initially, defendants met their obligations under the agreement, but then

they stopped delivering purchased receivables to plaintiff, all while still conducting regular business

operations. Defendants are now in default, only having delivered $1,249.90 to plaintiff. Therefore,

under the terms of the agreement, they are responsible for collection fees of $2,749.82 (20% of the

Outstanding Adjusted Sold Amount of Future Receipts), and a $7,500.00 waiver fee, i.e., $2,500 for

each of the three times defendants failed to make their payment to plaintiff and plaintiff nonetheless

did not default the defendants.2 The outstanding balance due is an additional $23,998.92 on the

original amount owed, plus costs, disbursements, and statutory interest from June 28, 2023.

Procedural History

Plaintiff commenced this action on June 29, 2023, by filing a summons and complaint.

Defendants served an answer with counterclaims on July 31, 2023, and plaintiff served a reply

thereto on August 1, 2023. Plaintiff then served various demands for information which included,

inter alia, a Notice to Admit per CPLR § 3123 requesting fifteen admissions as to the

contract/agreement dated May 30, 2023. Defendants objected to each demand and without waiving

their objections, denied all fifteen demands, including the demands to authenticate “a true and

accurate copy” of the contract/agreement. Defendants similarly objected to plaintiff’s discovery

demands and demand for interrogatories. Plaintiff served a notice of rejection as to defendants’

“inadequate’ responses.” The Court then issued a Preliminary Conference Order on January 3, 2024.

1 An ACH withdrawal (or ACH debit) is an electronic, "pull-based" transfer that moves funds out of a U.S. bank account via the Automated Clearing House network. 2 See also ¶ 10 of plaintiff Alexander Eckstein’s affirmation in support of the motion. 518890/2023 Page 2 of 4

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Once the parties were unable to resolve the discovery issues, plaintiff served a motion

seeking an order per CPLR § 3126 [3] striking defendants’ answer or, in the alternative, an order per

CPLR § 3126 [2] precluding defendants from offering evidence at trial concerning the information

demanded but not provided. Defendants failed to oppose this motion. By an order dated March 14,

2024, the Court granted the motion to the extent that defendants were ordered to respond to

plaintiff’s discovery demands within 30 days of entry of the order, noting that there was a pending

Order to Show Cause by defendants’ counsel to withdraw as their attorneys. However, this

application was withdrawn due to defense counsel’s inability to effectuate service.

The Court then issued a Compliance Conference order dated May 24, 2024, directing that all

discovery was to be completed by June 13, 2025. Based on defendants’ continuing non-compliance

with plaintiff’s discovery demands and the Court’s discovery orders, plaintiff served a second motion

for an order per CPLR § 3126 [3] striking defendants’ answer on March 10, 2025. On March 17,

2025, defense counsel filed a second request for an Order to Show Cause to withdraw as their

attorney. By an Order dated June 26, 2025, the Court granted the application to be relieved as counsel

and stayed the action for 45 days to allow defendants to retain new counsel. On September 9, 2025,

once the stay expired, the Court granted plaintiff’s motion to strike defendants’ answer upon their

failure to oppose the motion. The Court also directed that the Note of Issue [for an inquest] was to be

filed by April 24, 2026. Plaintiff then served this current motion for a default judgment per CPLR §

3215 directing the clerk to enter judgment in favor of plaintiff.

Law and Analysis

The appropriate remedy where defendants have appeared and answered but their answer is

later stricken, is an inquest as to damages (Hudson v City of New York, 267 AD2d 351, 352 [2d Dept

1990]; Espinal v City of New York, 264 AD2d 806 [2d Dept 1999]), unless the damages sought in an

action are for a “sum certain or for a sum which can by computation be made certain” (Rokina

Optical Co. v Camera King, Inc., 63 NY2d 728, 730 [1984]; CPLR § 3215, subd [a]).

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The September 9, 2025 order struck defendants’ answer in its entirety and directed that the

Note of Issue be filed for an inquest. However, where an answer is stricken per CPLR § 3126 [3], the

Court may enter judgment without the need for an inquest (id. at p.729). Here, plaintiff’s damages are

for a sum certain, plus penalties and interest as defined by the agreement and set forth in the

complaint.

Accordingly, it is hereby

ORDERED that the plaintiff’s motion for an order per CPLR § 3215 directing the Clerk to

enter judgment in favor of plaintiff and against defendants for the amount demanded in the

complaint, $23,998.92, plus penalties in the amount of $10,249.82, plus costs and statutory interest

from June 28, 2023, is GRANTED; and it is further

ORDERED that plaintiff shall submit a Clerk’s judgment, and it is further

ORDERED that the Clerk shall enter judgment in the amount of $23,998.92, $23,998.92,

plus penalties in the amount of $10,249.82, plus costs and statutory interest from June 28, 2023.

This constitutes the decision and order of the Court.

E N T E R:

_______________________________ Hon. Anne J. Swern, J.S.C. Dated: 3/4/2026

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