Highland Hill Capital LLC v Zuendt Engg., LLC 2026 NY Slip Op 30978(U) March 19, 2026 Supreme Court, Erie County Docket Number: Index No. 820124/2025 Judge: Gerald J. Greenan III 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/820124_2025_pb.html[03/24/2026 3:45:43 PM] FILED: ERIE COUNTY CLERK 03/19/2026 12:27 PM INDEX NO. 820124/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/19/2026
STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE
HIGHLAND HILL CAPITAL LLC , Plaintiff, DECISION AND ORDER
-against- Index No. 820124/2025 Assigned Justice: ZUENDT ENGINEERING, LLC et al, HON. GERALD J. GREENAN Ill, J.S.C. Defendants.
Plaintiff Highland Hill Capital LLC moves pursuant to CPLR 3215(i) for summary
judgment against all Defendants on the ground that Defendants breached the Settlement
Ag reement entered into by the parties on October 16, 2025. Defendants oppose only the
award of attorney's fees. For the reasons set forth below, Plaintiffs motion is GRANTED
in its entirety.
Plaintiff Highland Hill Capital LLC ("Plaintiff') is a limited liability company organized
under the laws of the State of Florida engaged in the purchase and sale of future
receivables and sales proceeds between commercial entities - a business commonly
referred to as "merchant cash advance." On or about June 9, 2025, Plaintiff entered into
a Revenue Purchase Agreement ("RPA") with Defendants Zuendt Engineering , LLC d/b/a
Zuendt Engineering LLC ; Zuendt Engineering Florida , LLC ; Zuendt Engineering ; Zuendt
Capital Corporation; Zuendt Consulting , LLC (collectively, "Merchant"), pursuant to which
Plaintiff purchased $149 ,900.00 of Merchant's future receivables . Defendants Alexander
Frederick Zuendt and Angela Lynn Zuendt (collectively, "Guarantors") personally
guaranteed Merchant's performance under the RPA.
[* 1] 1 of 6 FILED: ERIE COUNTY CLERK 03/19/2026 12:27 PM INDEX NO. 820124/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/19/2026
Merchant remitted $19 ,783.50 toward the purchased receivables and ceased
making payments on or about September 12, 2025, leaving an unremitted balance of
$130,116.50. Following Merchant's default, the parties entered into a written Settlement
Agreement on October 16, 2025. Under the Settlement Agreement, Defendants
acknowledged their indebtedness to Plaintiff in the amount of $187,563.10. This figure
was comprised of the unremitted purchased amount of $130,116.50, attorney's fees
incurred in connection with the RPA default of $52 ,046.60 , default fees of $2 ,500 .00 , and
NSF fees of $2,900.00.
Pursuant to the Settlement Agreement, Plaintiff agreed to accept $187 ,563.10 as
payment in full (the "Settlement Amount"), provided Defendants complied with the
following payment schedule: (a) weekly ACH payments of $2,500.00 commencing
October 24, 2025 , continuing each Friday thereafter; and (b) daily ACH payments of
$1,199.00 commencing January 16, 2026, continuing until the Settlement Amount was
paid in full. The Settlement Agreement further provided that upon default, Plaintiff would
be entitled to collect the full RPA Balance of $187,563.10 , less any payments received ,
plus attorney's fees equal to 25% of the outstand ing balance.
Defendants made a single payment of $2 ,500.00 on or about October 24 , 2025, and
thereafter ceased all further remittances, constituting a breach of the Settlement
Agreement on November 17, 2025. Plaintiff commenced this action by filing a Summons
and Complaint on November 13, 2025 . Defendants filed a verified Answer on or about
December 16, 2025. Plaintiff timely fi led the instant motion for summary judgment on
December 17, 2025. Defendants filed opposition on January 20 , 2026 , followed by
Plaintiffs reply filed January 22 , 2026.
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A motion for summary judgment shall be granted where there is no genuine triable
issue of material fact and the movant is entitled to judgment as a matter of law (CPLR §
3212 ; Zuckerman v City of New York, 49 NY2d 557, 560 [19801). The movant bears the
initial burden of tendering sufficient evidence to eliminate any material issues of fact.
Once met, the burden shifts to the opposing party to demonstrate, by admissible
evidence, the existence of a triable issue (Id) .
"It is well settled that the elements of a breach of contract cause of action are 'the
existence of a contract, the plaintiffs performance under the contract, the defendant's
breach of that contract, and resulting damages' " (Niagara Foods, Inc. v Ferguson Elec.
Serv. Co., Inc., 111 AD3d 1374, 1376 [4th Dept 20131).
All four elements are satisfied here. First, the Settlement Agreement executed on
October 16, 2025 is a binding, enforceable contract, the existence of which Defendants
do not dispute. Second, Plaintiff performed by forbearing from further enforcement action
during the pendency of Defendants' agreed-upon payment schedule. Third , Defendants
unquestionably breached the Settlement Agreement by remitting only one payment of
$2 ,500.00 and failing to make any further payments thereafter. Fourth, Plaintiff suffered
damages as a direct and proximate result of Defendants' breach. Defendants do not
contest any of these material facts in their opposition. Accord ingly, Plaintiff has
established a prima facie entitlement to summary judgment on its breach of contract
claim .
Pursuant to the default provisions of the Settlement Agreement, Plaintiff is entitled
to the full Settlement Amount of $187,563 .10, less the single payment of $2 ,500.00
[* 3] 3 of 6 FILED: ERIE COUNTY CLERK 03/19/2026 12:27 PM INDEX NO. 820124/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/19/2026
received, leaving a principal balance of $185 ,063 .10. Defendants do not contest this
calculation.
Plaintiff further seeks attorney's fees of $46 ,265.78, representing 25% of the
outstanding principal balance as provided in the Settlement Agreement. Defendants
oppose this portion of the motion , arguing that a fee calculated as a fixed percentage of
the unpaid balance , unaccompanied by an itemized bill demonstrating actual time spent,
is per se unreasonable under New York law.
This Court disagrees and awards attorney's fees in the amount requested .
Under the general rule , attorney's fees are incidents of litigation and a prevailing
party may not collect them from the loser unless an award is authorized by agreement
between the parties, statute or court rule (Hooper Assoc., Ltd. v AGS Computers, Inc., 74
NY2d 487 [1989]) . Here, the Settlement Agreement expressly and unambiguously
provides for the recovery of attorney's fees equal to 25% of the outstanding balance upon
default. That contractual provision is enforceable .
Although New York courts retain inherent authority to determine the reasonableness
of a contractually specified fee and are not irrevocably bound by a fixed percentage, such
a percentage provision is not automatically unenforceable. The authorities cited by
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Highland Hill Capital LLC v Zuendt Engg., LLC 2026 NY Slip Op 30978(U) March 19, 2026 Supreme Court, Erie County Docket Number: Index No. 820124/2025 Judge: Gerald J. Greenan III 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/820124_2025_pb.html[03/24/2026 3:45:43 PM] FILED: ERIE COUNTY CLERK 03/19/2026 12:27 PM INDEX NO. 820124/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/19/2026
STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE
HIGHLAND HILL CAPITAL LLC , Plaintiff, DECISION AND ORDER
-against- Index No. 820124/2025 Assigned Justice: ZUENDT ENGINEERING, LLC et al, HON. GERALD J. GREENAN Ill, J.S.C. Defendants.
Plaintiff Highland Hill Capital LLC moves pursuant to CPLR 3215(i) for summary
judgment against all Defendants on the ground that Defendants breached the Settlement
Ag reement entered into by the parties on October 16, 2025. Defendants oppose only the
award of attorney's fees. For the reasons set forth below, Plaintiffs motion is GRANTED
in its entirety.
Plaintiff Highland Hill Capital LLC ("Plaintiff') is a limited liability company organized
under the laws of the State of Florida engaged in the purchase and sale of future
receivables and sales proceeds between commercial entities - a business commonly
referred to as "merchant cash advance." On or about June 9, 2025, Plaintiff entered into
a Revenue Purchase Agreement ("RPA") with Defendants Zuendt Engineering , LLC d/b/a
Zuendt Engineering LLC ; Zuendt Engineering Florida , LLC ; Zuendt Engineering ; Zuendt
Capital Corporation; Zuendt Consulting , LLC (collectively, "Merchant"), pursuant to which
Plaintiff purchased $149 ,900.00 of Merchant's future receivables . Defendants Alexander
Frederick Zuendt and Angela Lynn Zuendt (collectively, "Guarantors") personally
guaranteed Merchant's performance under the RPA.
[* 1] 1 of 6 FILED: ERIE COUNTY CLERK 03/19/2026 12:27 PM INDEX NO. 820124/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/19/2026
Merchant remitted $19 ,783.50 toward the purchased receivables and ceased
making payments on or about September 12, 2025, leaving an unremitted balance of
$130,116.50. Following Merchant's default, the parties entered into a written Settlement
Agreement on October 16, 2025. Under the Settlement Agreement, Defendants
acknowledged their indebtedness to Plaintiff in the amount of $187,563.10. This figure
was comprised of the unremitted purchased amount of $130,116.50, attorney's fees
incurred in connection with the RPA default of $52 ,046.60 , default fees of $2 ,500 .00 , and
NSF fees of $2,900.00.
Pursuant to the Settlement Agreement, Plaintiff agreed to accept $187 ,563.10 as
payment in full (the "Settlement Amount"), provided Defendants complied with the
following payment schedule: (a) weekly ACH payments of $2,500.00 commencing
October 24, 2025 , continuing each Friday thereafter; and (b) daily ACH payments of
$1,199.00 commencing January 16, 2026, continuing until the Settlement Amount was
paid in full. The Settlement Agreement further provided that upon default, Plaintiff would
be entitled to collect the full RPA Balance of $187,563.10 , less any payments received ,
plus attorney's fees equal to 25% of the outstand ing balance.
Defendants made a single payment of $2 ,500.00 on or about October 24 , 2025, and
thereafter ceased all further remittances, constituting a breach of the Settlement
Agreement on November 17, 2025. Plaintiff commenced this action by filing a Summons
and Complaint on November 13, 2025 . Defendants filed a verified Answer on or about
December 16, 2025. Plaintiff timely fi led the instant motion for summary judgment on
December 17, 2025. Defendants filed opposition on January 20 , 2026 , followed by
Plaintiffs reply filed January 22 , 2026.
[* 2] 2 of 6 FILED: ERIE COUNTY CLERK 03/19/2026 12:27 PM INDEX NO. 820124/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/19/2026
A motion for summary judgment shall be granted where there is no genuine triable
issue of material fact and the movant is entitled to judgment as a matter of law (CPLR §
3212 ; Zuckerman v City of New York, 49 NY2d 557, 560 [19801). The movant bears the
initial burden of tendering sufficient evidence to eliminate any material issues of fact.
Once met, the burden shifts to the opposing party to demonstrate, by admissible
evidence, the existence of a triable issue (Id) .
"It is well settled that the elements of a breach of contract cause of action are 'the
existence of a contract, the plaintiffs performance under the contract, the defendant's
breach of that contract, and resulting damages' " (Niagara Foods, Inc. v Ferguson Elec.
Serv. Co., Inc., 111 AD3d 1374, 1376 [4th Dept 20131).
All four elements are satisfied here. First, the Settlement Agreement executed on
October 16, 2025 is a binding, enforceable contract, the existence of which Defendants
do not dispute. Second, Plaintiff performed by forbearing from further enforcement action
during the pendency of Defendants' agreed-upon payment schedule. Third , Defendants
unquestionably breached the Settlement Agreement by remitting only one payment of
$2 ,500.00 and failing to make any further payments thereafter. Fourth, Plaintiff suffered
damages as a direct and proximate result of Defendants' breach. Defendants do not
contest any of these material facts in their opposition. Accord ingly, Plaintiff has
established a prima facie entitlement to summary judgment on its breach of contract
claim .
Pursuant to the default provisions of the Settlement Agreement, Plaintiff is entitled
to the full Settlement Amount of $187,563 .10, less the single payment of $2 ,500.00
[* 3] 3 of 6 FILED: ERIE COUNTY CLERK 03/19/2026 12:27 PM INDEX NO. 820124/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/19/2026
received, leaving a principal balance of $185 ,063 .10. Defendants do not contest this
calculation.
Plaintiff further seeks attorney's fees of $46 ,265.78, representing 25% of the
outstanding principal balance as provided in the Settlement Agreement. Defendants
oppose this portion of the motion , arguing that a fee calculated as a fixed percentage of
the unpaid balance , unaccompanied by an itemized bill demonstrating actual time spent,
is per se unreasonable under New York law.
This Court disagrees and awards attorney's fees in the amount requested .
Under the general rule , attorney's fees are incidents of litigation and a prevailing
party may not collect them from the loser unless an award is authorized by agreement
between the parties, statute or court rule (Hooper Assoc., Ltd. v AGS Computers, Inc., 74
NY2d 487 [1989]) . Here, the Settlement Agreement expressly and unambiguously
provides for the recovery of attorney's fees equal to 25% of the outstanding balance upon
default. That contractual provision is enforceable .
Although New York courts retain inherent authority to determine the reasonableness
of a contractually specified fee and are not irrevocably bound by a fixed percentage, such
a percentage provision is not automatically unenforceable. The authorities cited by
Defendants stand for the proposition that courts may look behind a contractual fee to
assess reasonableness , not that they must disallow the contractual rate whenever an
itemized billing statement is absent (See, Prince v Schacher, 125 AD3d 626 , 628 [2d Dept
2015]).
Th is Court finds the contractual provision at issue to be unambiguous: upon
Defendants' default, Plaintiff is entitled to 25% of the outstanding balance as attorney's
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fees . This formula is a common, commercially accepted method of calculating fees in the
merchant cash advance industry, and Defendants, represented by counsel , freely
bargained for and agreed to it in the Settlement Agreement.
Plaintiff may be entitled to recover an attorney's fee of a fixed percentage if it can
demonstrate that the quality and quantity of the legal services rendered were such as to
warrant, on a quantum meruit basis, that full percentage (Indus. Equip. Credit Corp. v
Green, 92 AD2d 838, 838 [1st Dept 1983]). The 25% figure here, applied to a principal
balance of $185,063.10 , resulting in a fee of $46,265.78 , is not facially unreasonable
given the litigation necessary to enforce this commercial obligation . Plaintiff's counsel has
prosecuted this action , prepared and filed a Summons and Complaint, responded to
Defendants' Answer, briefed the instant summary judgment motion , and submitted a reply
memorandum of law, and then must collect any such judgment granted by this Court.
In the absence of any affidavit by Defendants, any evidence contesting the amount
of work performed, or any factual showing that the fee is disproportionate or oppressive,
this Court declines to reduce the contractual fee. Defendants' abstract objection ,
unsupported by any evidentiary showing, does not rise to the level required to defeat the
contractual attorney's fee provision .
Based upon the foregoing , it is hereby
ORDERED that Plaintiff Highland Hill Capital LLC's motion for summary judgment
pursuant to CPLR 3215(i) is GRANTED in its entirety; and it is further
ORDERED that judgment .is entered in favor of Plaintiff Highland Hill Capital LLC
and against Defendants Zuendt Engineering, LLC d/b/a Zuendt Engineering LLC; Zuendt
Engineering Florida, LLC; Zuendt Engineering; Zuendt Capital Corporation; Zuendt
[* 5] 5 of 6 FILED: ERIE COUNTY CLERK 03/19/2026 12:27 PM INDEX NO. 820124/2025 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/19/2026
Consulting , LLC ; Alexander Frederick Zuendt; and Angela Lynn Zuendt, jointly and
severally, as follows :
a) Principal balance: $185 ,063 .10 b) Attorney's fees : $ 46 ,265.78 c) TOTAL JUDGMENT: $231,328.88
ORDERED that post-judgment interest shall accrue on the total judgment amount at
the statutory rate of nine percent (9%) per annum pursuant to CPLR § 5004 ; and it is
further
ORDERED that costs shall be taxed by the Clerk of the Court in accordance with
CPLR § 8301 ; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of this Court.
Dated :
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