Libertas Funding LLC v. CDM Plumbing Inc

2024 NY Slip Op 30909(U)

• Court: New York Supreme Court, Kings County
• Decided: March 19, 2024
• Status: Unpublished

Opinion

Libertas Funding LLC v CDM Plumbing Inc 2024 NY Slip Op 30909(U) March 19, 2024 Supreme Court, Kings County Docket Number: Index No. 534890/2023 Judge: Leon Ruchelsman 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 03/19/2024 04:24 PM INDEX NO. 534890/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE.OF NEW YORK COUNTY OF ~INGS: CiVIL tERM! COMMERCIAL PART 8 .., - ---·-----·-·--- ----,------ -- .. --.-.---·--· ---x· LIBERTAS FUN.DING LLC~ Plaintiff, Decision and order

- against - tnde~ N¢. 5l4ijjO/2-023

CDM PLUMBING INC OBA ROTO-ROOTER; CDM WATER RESTORATION INC and MICHAEL THOMAS MERZ; DALE ANN- MERZ·, Defendants, March 19, 2024 -------- ~-- .- . --- ~----~-----~ ·. - .· -- ... x 'PRESENT: HON. LEON RUCI:IELSMAN Motion Seq.. #1

The plaintiff has moved seeking summary judgement pursuant t.,q CPL·R §3212. argu.ing th.eie are nci questions ot· fact ·the

d,efendants owe the money sought. The plaintiff has also moved

·s·eeking to dismiss defendant's counterclaim s. The de:f eI1dants

h,ave opposed tilce rnotion,s. Papers we.re submitted by the pa,rties

and afte.r reviewing all the arguments thi.s court now makes the

follo:wing determinatio n..

On Mc!.Y 10, 2023 and September 6, 2023,-the piaintiff a,

merchant cash adv.ance funding provider entered into contracts ·with de·fendan ts who reside i rt Texa-s . Pursuant to th~ a gre.ement s

the plaintiff purchased $325,QbO of defendant's future receivable for $250,00'0 and $'130;.0-00 of defen.dartt' s- future receivabl:·es fo.r

$13,0,, 000. The defendants. . gµaranteed tp.e a.9r.1;=em:ents" The

plaintiff asserts the defe-ridants stopped rerilittanc~s _in November

2023 arid now owe· $214·, 313'. 6-5. Furthe.r, the_. plaintiff assert~. the

defendant.bre ached the agreement PY by changing the designated

barik account without Plaintiff's authorization and by placing a

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s.top payment on the· account. This --action was ·c6mrnenc.ed an,d now

the pl_aintiff seeks surpmary judgement arguing there can: be no questions of fact the defendants owe the amount outstanding and

j_udgernent should ·b:e granted in the,ir favor. The defE:mdan_t:s

oppose tne motion arguing there are questions of fact which

p-reclude a suinmary· determinatio n at this time.·

Conclusions of Law

Where: the material facts at issue in a ca.se are in dispute

surtuna.ty judgment cannot be granted ( Zuckerman v. City of New

York, 4"9 NYS2d 557, 427 NYS2"d 595 [1980]). Gen·erally, it is for

.the jury, the t:i:-ier of f:act to determine the legal c·a-use ·o_"f any

injury, however, wht=re only one conclusion may be drawn from the

£_-acts then the question of leg-al cause ma"y be= decided by· the trial: court as a matter. of 1-aw (Marino v·. Jamison, 189 -·Ao.3-d 1021_,

i36 NYS3d 324 [2d. Dept., 2021).

Concerning establishing- any default,. it is w,ell sett;led tl'J.at "a.proper foundation for the admission of a business record

must be provided by someone with personal. knowledge of the

maker·' s- business practices ,and proc_edur(;;S" (Cit.iban"k N. A. v .

. Cabrera, 130 AD3d 861, 14 NYS3d 420 [2d Dept .. , 2015]). Thus,

where a party introduces evioencie= of' the ex.isteri.ce of J,.oans,

pe;rsoncal guaran_t:.ees- and the defendant's failure to make payments

according to the. terms of the ins_truments then summary judgement

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is proper (see, JPMorgan Chase Bank N. A., v. Bauer, 92 AD3d 641,

938 NYS2d 190 [2d Dept., 2012]) . In this case the plaintiff

submitted the affidavit of Ricky Palaci'o a customer service

represent ative of the plaintiff . He stated that he reviewed the

plaintiff 's records in connectio n with the loans extended in this

case. He further stated that all the documents he reviewed were

maintaine d in the regular course of business and all such records

were made near their occurrenc e with someone who had knowledge at

that time and that the plaintiff 's standard practice is to keep

such records in the. ordinary course of l:msiness. Thus, the

plaintiff has establishe d the admissibi lity of the records relied

upon since Mr. Palacio had knowledge and familiarit y of the

plaintiff 's practic:;es and procedure s (see, Cadlerock Joint

Venture L. P. v. Trombley:, 150 AD3d 957, 54 NYSJd 127 [2d Dept.,

2017]),

The specific . record in . support of the motion seeking sµmmary

judgement is remittanc e payment statement s which demonstra tes

that certai.n payments due were never.£orw arded to the plaintiff

( see; NYSCEF Doc. No. 4 and Doc. No. 5) . The ref ore, the proper

.foundatio n for the admission of such document has been provided

by Mr. Palacio who establish familiarit y with the record keeping

pr_actices of the plaintiff ( ~ ; JPMorgan Chase Bank N. A. • v.

Rads Grbtip Inc,, 88 AD3d 766, 930 NYS2d 89,9 [2d Dept., 2011]).

Therefore , the plaintiff establishe d its entitleme nt to

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summary judgement.

The defendants insist the plaintiff has failed to eliminate

all questions of fact. However, upon the presentation of the

evidence noted above, the plaintiff has s·ufficiently demonstrated

funds were given to the de·fendants and such funds have not been

fully returned. The rernittence payments along with the affidavit

of Mr. Palacio are sufficient to eliminate all questions of fact

in this regard. Further, although the defendants allude to the

fact the contract is not valid oh the grounds of usury they make

no such substantive arguments in opposition to the motion seeking

Therefor.e, based on the foregoing, the motion seeking

summary judgernent is granted.

So ordered.

ENTER:

DATED: March 19, 2024 Brooklyn N.Y, Hon. Leon Ruch· llSC

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