Fenix Capital Funding, LLC v Phlllips Dev. & Events, LLC 2024 NY Slip Op 30325(U) January 25, 2024 Supreme Court, Kings County Docket Number: Index No. 535560/2022 Judge: Francois A. Rivera 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 01/26/2024 12:04 PM INDEX NO. 535560/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024
At an IAS Tenn, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 25 th day of January 2024
HONORABLE FRANCOIS A. RJVERA ----------------------------------------------------------·-------X . FENIX CAPITAL FUNDING, LLC,
Plaintiff, DECISION & ORDER Index No. 535560/2022 -against-
PHlLLIPS DEVELOPMENT & EVENTS, LLC /OBA: SOMETHING FISHY, PHILLIP WATERS DEVELOPMENT LLC, TERENCE D PHILLIPS, AND PATRICE F PHILLIPS, I
Defendants. ---------------------------------------------------------------------X Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on September 7, 2023, by Fenix Capital Funding LLC (hereinafter the plaintiff) for an order pursuant to CPLR 3212 granting summary judgment in its favor on its causes of action for breach of contract, unjust enrichment and fraud as asserted against defendants Phillips Development & Events, LLC /D/B/A: Something Fishy, Phillip Waters Development LLC, Terence D Phillips, and Patrice F Phillips. The motion is unopposed.
-Notice of Motion -Affirmation in Support -Affidavit in Support Exhibits A-C -Statement of Material Facts
BACKGROUND
The verified complaint alleges thirty-four allegations of fact m support of three
denominated causes of action. The first is for breach of contract, the second is for unjust
enrichment and the third alleges .fraud.
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The verified complaint aI!eges the following salient facts. Pursuant to a receivable
purchase agreement (hereinafter the ·agreement) and personal guaranty dated April 27, 2022, the
plaintiff purchased from Phillips Development & Events, LLC /DBA: Something Fishy
(herei~after Something Fishy) its future accounts receivable for the sum of$ 90,ooo:oo.
On or about April 27, 2022, in consideration of the sum of$ 90,000.00, Something Fishy
sold, assigned, and transferred to plaintiff seventeen (17 %) percent of its future sales proceeds,
up to an aggregate amount of$ I I 6, I 00.00. By the agreement Terrence D Phi II ips and Patrice F.
Phillips executed a personal guarantee if Something Fishy defaulted.
On November 25, 2022, Something Fishy defaulted under the agreement by failing to remit
its sales proceeds to the plaintiff as provided for in the agreement. In total, Something Fishy
remitted the amount of$ 55,381.66 in accordance with the agreement, leaving a balance of$
60, 7 I 8.34 remaining due and owing.
Accordingly, there is now due and payable to plaintiff, by the defendants, the princi·pal
balance sum of$ 60,718.34, contractual default fees and penalties, and nonsufficient fund fees in
the amount of $ 1, 150.00, together with interest from November 25, 2022, and reasonable
attorneys' fees and costs and disbursements of this action.
LAW AND APPLICATION
There is no opposition to the instant motion. However, a summary judgment motion should
not be granted merely because the party against whom judgment is sought failed to submit papers
in opposition to the motion, i.e. defaulted (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276,
278 n [1st Dept 2006], citing Vermont Teddy Bear Co., v 1--800 Beargram Co., 373 F3d 241 [2nd
Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the
granting of summary judgment. Instead, the ... court must still assess whether the moving party
[* 2] 2 of 6 Paqe 2 of 6 FILED: KINGS COUNTY CLERK 01/26/2024 12:04 PM INDEX NO. 535560/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024
has fulfilled its burden of demonstrating that there .is no genuine iss~e of material fact and its
entitlement to judgment as a matter of law"]; see Cugini v System Lumber Co., Inc., 111 AD2d
114 [1st Dept 1985]).
It is well established that summary judgment may be granted only when no triable issue of
fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving
party to make a prima facie showing that he or she is entitled to summary judgment as a matter of
law by presenting evidence in admissible form demonstrating the absence of material facts
(Guiffirda v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of the summary judgment motion,
_regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If
prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary
proof sufficient to estabHsh the existence of material issues of fact (Alvarez, 68 NY2d at 324).
Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a
determination that the movant's papers justify holding, as a matter of law, that there is no defense
to the cause of action or that the cause of action or defense has no merit. Furthermore, all of the
evidence must be viewed in the light most favorable to the opponent of the motion (Marine
Midland Bank v Dino & Artie's _Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).
In the case at bar, the only sworn testimony submitted by the plaintiff in support of the
motion was an affirmation of Maksim Leyvi, its counsel (herenafter Leyvi), and an affidavit of
Alexander Ryvkin, its chief legal officer (hereinafter Ryvkin). Leyvi's affirmation demonstrates
no personal knowledge of any of the transactional facts alleged in the complaint. An attorney's
affirmation that is not based upon personal knowledge is of no probative or evidentiary
significance (Nerayoffv Khorshad, 168 AD3d 866, 867 [2d Dept 2019], citing Warrington v Ryder
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Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]). Leyvi 's affirmation states that the facts in
support of the motion are contained in the affidavit ofRyvkin.
Ryvkin verified the complaint in the instant action. Neither the verified complaint nor
the affidavit of Ryvkin averred that the agreed upon purchase price of $90,000.00 for the
defendant's future receivables was actually paid to the defendants. Nor did the plaintiffs
evidentiary submission demonstrate that it was actually paid. Consequently, the plaintiff did not . .
demonstrate its own performance pursuant to the agreement. A fortiori, plaintiff did not a make
prima facie showing of the merchant's breach of the agreement.
Breach of Contract
· The e~sential elements of a cause of action to recover damages for breach of contract are
the existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's
breach of its contractual obligations, and damages resulting from the breach (see Cruz v Cruz,
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Fenix Capital Funding, LLC v Phlllips Dev. & Events, LLC 2024 NY Slip Op 30325(U) January 25, 2024 Supreme Court, Kings County Docket Number: Index No. 535560/2022 Judge: Francois A. Rivera 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 01/26/2024 12:04 PM INDEX NO. 535560/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024
At an IAS Tenn, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 25 th day of January 2024
HONORABLE FRANCOIS A. RJVERA ----------------------------------------------------------·-------X . FENIX CAPITAL FUNDING, LLC,
Plaintiff, DECISION & ORDER Index No. 535560/2022 -against-
PHlLLIPS DEVELOPMENT & EVENTS, LLC /OBA: SOMETHING FISHY, PHILLIP WATERS DEVELOPMENT LLC, TERENCE D PHILLIPS, AND PATRICE F PHILLIPS, I
Defendants. ---------------------------------------------------------------------X Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on September 7, 2023, by Fenix Capital Funding LLC (hereinafter the plaintiff) for an order pursuant to CPLR 3212 granting summary judgment in its favor on its causes of action for breach of contract, unjust enrichment and fraud as asserted against defendants Phillips Development & Events, LLC /D/B/A: Something Fishy, Phillip Waters Development LLC, Terence D Phillips, and Patrice F Phillips. The motion is unopposed.
-Notice of Motion -Affirmation in Support -Affidavit in Support Exhibits A-C -Statement of Material Facts
BACKGROUND
The verified complaint alleges thirty-four allegations of fact m support of three
denominated causes of action. The first is for breach of contract, the second is for unjust
enrichment and the third alleges .fraud.
Page 1 of 6
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The verified complaint aI!eges the following salient facts. Pursuant to a receivable
purchase agreement (hereinafter the ·agreement) and personal guaranty dated April 27, 2022, the
plaintiff purchased from Phillips Development & Events, LLC /DBA: Something Fishy
(herei~after Something Fishy) its future accounts receivable for the sum of$ 90,ooo:oo.
On or about April 27, 2022, in consideration of the sum of$ 90,000.00, Something Fishy
sold, assigned, and transferred to plaintiff seventeen (17 %) percent of its future sales proceeds,
up to an aggregate amount of$ I I 6, I 00.00. By the agreement Terrence D Phi II ips and Patrice F.
Phillips executed a personal guarantee if Something Fishy defaulted.
On November 25, 2022, Something Fishy defaulted under the agreement by failing to remit
its sales proceeds to the plaintiff as provided for in the agreement. In total, Something Fishy
remitted the amount of$ 55,381.66 in accordance with the agreement, leaving a balance of$
60, 7 I 8.34 remaining due and owing.
Accordingly, there is now due and payable to plaintiff, by the defendants, the princi·pal
balance sum of$ 60,718.34, contractual default fees and penalties, and nonsufficient fund fees in
the amount of $ 1, 150.00, together with interest from November 25, 2022, and reasonable
attorneys' fees and costs and disbursements of this action.
LAW AND APPLICATION
There is no opposition to the instant motion. However, a summary judgment motion should
not be granted merely because the party against whom judgment is sought failed to submit papers
in opposition to the motion, i.e. defaulted (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276,
278 n [1st Dept 2006], citing Vermont Teddy Bear Co., v 1--800 Beargram Co., 373 F3d 241 [2nd
Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the
granting of summary judgment. Instead, the ... court must still assess whether the moving party
[* 2] 2 of 6 Paqe 2 of 6 FILED: KINGS COUNTY CLERK 01/26/2024 12:04 PM INDEX NO. 535560/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024
has fulfilled its burden of demonstrating that there .is no genuine iss~e of material fact and its
entitlement to judgment as a matter of law"]; see Cugini v System Lumber Co., Inc., 111 AD2d
114 [1st Dept 1985]).
It is well established that summary judgment may be granted only when no triable issue of
fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving
party to make a prima facie showing that he or she is entitled to summary judgment as a matter of
law by presenting evidence in admissible form demonstrating the absence of material facts
(Guiffirda v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of the summary judgment motion,
_regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If
prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary
proof sufficient to estabHsh the existence of material issues of fact (Alvarez, 68 NY2d at 324).
Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a
determination that the movant's papers justify holding, as a matter of law, that there is no defense
to the cause of action or that the cause of action or defense has no merit. Furthermore, all of the
evidence must be viewed in the light most favorable to the opponent of the motion (Marine
Midland Bank v Dino & Artie's _Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).
In the case at bar, the only sworn testimony submitted by the plaintiff in support of the
motion was an affirmation of Maksim Leyvi, its counsel (herenafter Leyvi), and an affidavit of
Alexander Ryvkin, its chief legal officer (hereinafter Ryvkin). Leyvi's affirmation demonstrates
no personal knowledge of any of the transactional facts alleged in the complaint. An attorney's
affirmation that is not based upon personal knowledge is of no probative or evidentiary
significance (Nerayoffv Khorshad, 168 AD3d 866, 867 [2d Dept 2019], citing Warrington v Ryder
Page 3 of 6
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Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]). Leyvi 's affirmation states that the facts in
support of the motion are contained in the affidavit ofRyvkin.
Ryvkin verified the complaint in the instant action. Neither the verified complaint nor
the affidavit of Ryvkin averred that the agreed upon purchase price of $90,000.00 for the
defendant's future receivables was actually paid to the defendants. Nor did the plaintiffs
evidentiary submission demonstrate that it was actually paid. Consequently, the plaintiff did not . .
demonstrate its own performance pursuant to the agreement. A fortiori, plaintiff did not a make
prima facie showing of the merchant's breach of the agreement.
Breach of Contract
· The e~sential elements of a cause of action to recover damages for breach of contract are
the existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's
breach of its contractual obligations, and damages resulting from the breach (see Cruz v Cruz,
213 AD3d 805 [2nd Dept 2023]).
To prevail on the instant motion, it was incumbent upon the plaintiff to prove each of
these elements as a matter of law. The plaintiff provided no evidence demonstrating that it
performed its part of the agreement by paying the defendants the agreed upon purchase price.
Consequently, the plaintiff did not meet its burden of demonstrating as a matter of law that the
defendants breached the agreement. Inasmuch as the plaintiff did not make a prim a facie
showing that the merchant breached the agreement, the obligation of the guarantor, was not
triggered. As a result, the plaintiff also failed to show that the guarantor breached the agreement.
Unjust Enrichment
The elements of a cause of action to recover for unjust enrichment are (I) the defendant
was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience
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to permit the defendant to retain what is sought to be recovered (Sarker v Das, 203 AD3d 973
[2nd Dept 2022], citing Financial Assistance, Inc. v Graham, 191 AD3d 952, 956 [2nd Dept
2021]).
Fraud
The elements of a cause of action to recover damages for fraud are a ri1 isrepresentation or
a rnaterial omission of fact which was false and known to be false by defendant. made for the
purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the
,misrepresentation or material omission, and injury (Hong Qin Jiang v. Li Wan Wu, 179 A.D.3d
1041, 1042 [2 nd Dept 2020]).
The plaintiffs causes of action for unjust enrichment and for fraud were both based on
the defendants' breach of the agreement. The existence of a valid contract governing the subject
matter of a dispute generally precludes recovery in quasi contract for events arising out of the
same subject matter (Murtha Constr., Inc. v. Town of Southampton Haus. Auth:, 210 A.D.3d 896,
897 [2 nd Dept 2022]). Merely alleging scienter in a cause of action to recover damages for
breach of contract, unless the representations alleged to be false are collateral or extraneous to
the terms of the agreement, does not convert a breach of contract cause of action into one
sounding in fraud (Crowley Marine Assocs. v. Nyconn Assocs., L.P., 292 A.D.2d 334, 334 [2 nd
Dept 2002]). Here, the plaintiff is claiming fraud based solely on the defendants' bn~ach of the
agreement.
Consequently, the plaintiff's evidentiary s_ubmission did not make a prima facie showing
that the defendants' were unjustly enriched at the plaintiff's expense. Nor did it plead or
demonstrate that the defendants defrauded the plaintiff. The motion is therefore denied without
regard to the sufficiency or lack of opposing papers (Cugini v. System Lbr. Co., 111 A.D.2d 114
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[1 st Dept 1985]).
CONCLUSION
The motion by Fenix Capital Funding LLC for an order pursuant to CPLR 3212 granting
summary judgment in its favor on its causes of action for breach of contract, unjust enrichment
and fraud as asserted against defendants Phillips Development & E_vents, LLC ID/BIA:
Something Fishy, Phillip Waters Development LLC, Terence D Phillips, and Patrice F Phillips is
denied.
The foregoing constitutes the decision and order of the Court.
ENTER:
J.S.C.
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