Libertas Funding, LLC v. Associates of Boca Raton, Inc.

2024 NY Slip Op 31354(U)

Opinion

Libertas Funding, LLC v Associates of Boca Raton, Inc.

2024 NY Slip Op 31354(U)

April 16, 2024

Supreme Court, Kings County Docket Number: Index No. 521042/2022 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 04/17/2024 09:49 AM INDEX NO. 521042/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 04/17/2024

Atai1 IAS Tetn1, Part 52 ofthe Supreme Coutt of the State of Ne\\' York; he Id i11 and i'cir the County of Kings; at the

Courthouse, at Civic Center, I3rooklvn, New Y 01'k, on the . . . ~ . . '

16th day of Ap1'il 2024

HONORABLE FRANCOIS A. RIVERA ------- --------------- - - ----------------------- ---- - --- - ----X LfBEK[AS FUNDJNG, LLC, DECISION & ORDER

Plain ti ff, Index No. : 521042/2 022 -against- Ms. 3

ASSOCIATES OF BOCA RATON, INC., PALMMORTGAGKLLC,

. .

ADVANTAGE REFERRALS, INC., INNELLA GROUP, INC,, CHAD INGRAM EDGE REALTY LLC, 52 JULIET LLC, ASSOCIATES PLUS, LLC_; JONATHAN CHADWICK INGRAM,

Defendants.

----- ------------- ----------------------------- ----------- ------------X

Recitation in accordance with CPLR 2219 (a) of the papers considered on notice of motion filed on October 27, 2023, under motion sequence number three, by Libertas Funding, LLC (hereinafter plaintiff) for an order pursuant to CPLR3212 granting summary judgment in its favor on its causes of action for breach of contract and personal guarantee against the defendants Associates of Boca Raton, Inc., Advantage Refen:als,- Inc., Inella Group, fnc., Chad Ingram Edge Realty LLC, 52 Juliet LLC, Associates Plus, LLC 1 (hereiiw1ler the compm1y defendants) and J(matlrnn Chadwick lµgram (hGreinaft~r the guar~lhtoi'); The motion is·urtopposed.

-Notice ofinotion -Affitmat1on in. support

Exhibits A-N·

'"Statement ofmaterial facts

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FILED: KINGS COUNTY CLERK 04/17/2024 09:49 AM INDEX NO. 521042/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 04/17/2024

BACKGROUND

On July 22, 2022, plaintiff commenced the instant action by filing a summo11s and verified complaintwith the Kings County Clerk's office {KCCO). OnAugust8, 2022, plaintiff filed a 1iotice ofdiscontinuance against defendant Palm Mortgage LLC. On August 21, 2()22, defendants Associates of Boca Raton, Inc., Palm Mortgage, LLC, AdvantageRcfc1Tals, Inc., I11ella Group, Inc,, Chad Ingeam Edge RcaltyLLC, 52Juliet LLC; Associates Plus, LLC, and Jonathan Chadwick Ingramjoincd issue by interposing and filing a Joint answer with the KCCO.

The verif1ed complaint alleges thirty-two allegations of fact ln support of two causes ofaction for breach of a contract and breach of a personal g.uaranty. The verified complaint alleges the following salient facts, among others, On or about October 6, 2021, p!aintiffc1rtd the company defendants entered into an agTe'ement, whereby plaintiff agreed to purcl1ase all rights to $325,500 of company defendants' fi.1ture receivables (hereinafter "agreenient #l"}. Plaintiff satisfied its obligation under agreement #1 by delivering to company defendants $250,000, the purchase price for said receivables.

Iii addit_ion, on December 9, 2021, plaintiff and company defendants entered into an agreement, whereby plaintiff agreed to purchase all rights to $685,000 ofcompany d~fendants' future receivables (hereinafter ''agreement #2"}. Plaintiff satisfied its obligation 11nder agree1nent #2 by de! ivering to compc,111y detenddnts $500,000 the purchase price fat said i'eceiyables. In addition; gitarantor agreed.~o guatarttee all amounts owed to plaintiff from company defendant upon a bteach _in performance by company defendants.

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FILED: KINGS COUNTY CLERK 04/17/2024 09:49 AM INDEX NO. 521042/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 04/17/2024

Initially, company defendant met its obligation under the agreements. However, company defendmits breached the agreements and stopped delivering the purchased receivables to plaintiff. Defendants are now in default having only delivered $563,292.18 to plaintiff. Per the agree1t1ents, defendants now still have an obligation to deliver to plaintiff an additional $461,707.82, plus costs, disbursements, statutory interest from July 16, 2022, and attorney's fee. The company defendants and the guarantor have failed to pay the aniounts due and owing under the agreement. LAWANDAPPLICATION

There is no opposition to the instant motion. However, '"[a] summary judgment motion should not be granted merely because the party against whotn judgme:nt is sought failed to submitpapets in opposition to the motion, (Le., 'defaulted')'' (Liberty Taxi Mgt., Irle. v Gincherman,·32AD3d 276,.278n [1st Dept 20061, citing Vermont TeddyBear Co., v 1-800 Beatgram Co. Inc., 3 73 F3d 241, 244 [2d Cir 2004] ["the failure to oppose a motion for summary j11dgment alone does notjustify the granting ofsummary judgment. Instead, the ... court must sti!L assess whether the moving party has fulfilled its burden of dernonstra.ting that there is no genuine issue of material fact and its entitler'nerit to judgment as a matter of law;']; see Cugil1iv System Lumber Co., Inc., 111 AD2d 114, 115 [1st Dept 1985]) .

.It is Well established tllatsUinmary Judgment may be granted only when notriable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2cl320 [19861). The burden is upon the moving party toinake a ptima fade showing that.he or she is entitled to .summary judgment as a matter of law by presenting evidence in admissible form Page 3 of 6

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FILED: KINGS COUNTY CLERK 04/17/2024 09:49 AM INDEX NO. 521042/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 04/17/2024

demonstrating the absence of any material issues of fact (GitdJi·ida v Citibank, 100 NY2d 72, 81 [2003]}.'

A failure to make that showing requires the denial oftbe surnrnaryjudgment

motion, regardless ofthe adequacy of the opposing papcrs· (.i(1·otte v Gervasio, 81 NY2d . . ' .

l 062, 1063 [I 993]). lfa prima fade showing has been made, the burden shifts to the opposing party to produce evidentiary proofsufficienl to establish the existence of material issues of fact (Alvarez, 68 NY2d at324).

Pursuant to CPLR 3212 (b), a coul't wi Ugrai1t Ii rn otion for surrtmaryjudgment upon a deterniinationthat the movai1t1s papers justify holding, as a matter of law, that there is no defense to the cause of action or th at the cause of acl ion or defense has no 111erit. Futthenno.re,all the evidence must be viewedin the light 1110s,t favorable to the opponent ofthe motion (Marine Midland Bank" Dino & Artie 1sA.utomatic Transmission Co,, 168 AD2d 6J() [2d Dept 1990]).

The essential elements ofa cause of action to re.cover damages for breach of contract are "the existence ofa contract, the plaintiffs performance pursuant to the contract,the defendant's breach of its contractrn:ll obligations, and damages resulting from the breach" (C,'uz v Cruz, 213 AD3d 805, 807 [2dDcpt 20231).

In the case at bar, the only sworn testimony submitted by plaintiffin support ofthe .motion was a11 affirmation of Avi Faskowitz, Esq., plaintiff's. t:ounsel (heteinaJter Pasl~owitz) and an affidavit ofRkky Palacio (hereinaHer [)alacio}. Faskowitz's affimtation ·did not aver personal knowledge of the .p labi ti rt s btisiness practices and

,proc:edures. His affirmation also demonstratqc\ no pc.r~orn1! knowledge.ofany ofthe Page4 of c,·

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FILED: KINGS COUNTY CLERK 04/17/2024 09:49 AM INDEX NO. 521042/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 04/17/2024

transactional facts alleged in the complaint. Faskowitz's aJlirmation made many allegations of fact regarding the defendants alleged breach without personal knowledge of the facts alleged. "An attorney's affirn:rnth.111 that is nm based upon personal knowledge is of no probative<or evidentiary significance'" tNerci;voffv Khorshad, 168 AD3d 866,867 l:Zd Dept 2019], citing Warrington vRyder Truck RentaJ, Inc.; 35 AD3d 455,456 [2d Dept 2006]).

Palacio did not aver that he was a signatory to the agreement or that he participated in lhe execution of same, He averred thathe was the authorized representative oftheplaintiff and that, as such, thathe had personal knowledge of plaintiffs business practices and procedures. He forth er ,.1 verred that the factual allegations·pi"offered i11 support of the motion for srnnmatyj11dgment were·derived from his review ofthe plaintift1s busfr1essrecords. Palacio,ho,.vever, did not identify any of the. exhibits annexed to the motion. Furthermore, the documents plaintiff submitted in support of motion did not include anything proving the amount plainLiffallegedly paid for the d efo1td ml ts' future receivables.

By 11ot proving that it paid the pilrchase price to the defendants that it had agreed to, plaintiff did 1iot es tab Iish its own performance under ti 1e agreements. This raises material issues qffact regarding the plaintiffs performance under the agreements. Consequently, the plaintiff ¢annot inake n pdin~1 fade sh9wing of eiititlemenno judgrrtenton its daims Tot breach of the agreements or bf the guaranties. Irt sum; plaintiff .has failed to inake a pri ma f'acie showing of cnlitlcment lo summary judgment on any of the claims·it has asseitcd against the defe1id,111ts.

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FILED: KINGS COUNTY CLERK 04/17/2024 09:49 AM INDEX NO. 521042/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 04/17/2024

CONCLUSION

Libertas Funding, LLC's motion for a1i order purstrnnt to CPLR 3212 granting summary judgment in its favor on its causes of ,icUon for breach of contract and personal guarantee as asserted against defondants1\ssociatcs of Bc,ca Raton, Jnc., Palm Mortgaget LLC, Advantage Referrals, Inc,, Irn:::lla Group, Inc., Chad Ingram Edge Realty LLC, 52 Juliet LLC, Associates Plus, LLC, and Jonathan Chadv;tick Ingram is denied.

The forcgoingconstitutes the decision ctnd order of this Court.

ENTER:

J.S.C.

HON. FRANCOISA. RIVERA

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