Novus Capital Funding II LLC v. J & M Distrib., Inc.
Opinion
Novus Capital Funding II LLC v J & M Distrib., Inc.
2024 NY Slip Op 31108(U)
March 28, 2024
Supreme Court, Kings County Docket Number: Index No. 517032/2023 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 04/02/2024 10:07 AM INDEX NO. 517032/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/02/2024
At an IAS Term, Part 52 of the Supreme Court ofthe
State ofNew York,held in
and for the County of
Kings, at the Courthouse, at Civic Center, Brooldyn, New York, on the 28th day of March 2024
HONORABLE FRANCOIS A. RIVERA -----· ------------------------- .---------- . --------. --- .---- .- .-X NOVUS CAPITAL FUNDING II LLC,
Plaintiff, DECISION & ORDER IndexNo. 517032/2023
-against-
J & M DISTRIBUTING, INC. D/B/A MEADOW GOLD DAIRY PRODUCTS, GLASGOW CAL RIPKEN BASEBALL MEADOW, MAND D YARD SERVICE, and MICHAEL BRENT MEIERS,
Defendants.
-------·.------------- .--· . ------ ·---· -·----· ----------- .- .. ----. --- ·x Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on December 12, 2023, uncler motion sequence number one; by Nevus Capital Funding II LLC (hereinafter the plaintiff) for an order pursµant to CPLR 3212granting summ~ryjudgment in its favor on its causes of action for breach of contract, breach of a guaranty agreement, and attorney's fees against J & M Distributing, Inc. D/B/A Meadow Gold Dairy Products, Glasgow Cal Ripken BasebaUMeadow, M and D Yard Service, (hereinafterthe company defendants) and Michael Brent Meiers (hereinafter the guarantor) (hereinafter jointly the defendants). The motion is opposed.
-Notice of Motion -Affidavit in Su,pport
Exhibits A-B
-Affinnation in. S~pport
Exhibits A.:J)
-Affirmation in opposition Exhibits A,.F
.:Meinoraridutn qf law in opposition
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FILED: KINGS COUNTY CLERK 04/02/2024 10:07 AM INDEX NO. 517032/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/02/2024
--Memorandum oflaw inreply BACKGROUND
On June 12, 2023, plaintiff c:ommenced the instant action by filing a summons and complaint with the Kings County Clerk's office {KCCO). On JuneJ, 2023, the defendants interposed and filed a joint verified answer with the KCCO.
The ,complaint alleges seventy-nine allegations of fact in support ofthree denominated causes of action. The first is for breach of contrac:t, the second is for breac:h ofa g11aranty agreement,and the third is for attorney's fees based on an alleged breach of these.· agreements.
The complaint alleges the following salient facts. On March 20, 2023, the plaintiff and the defendants entered into a revenue purchase agreement {hereinafter the agreement), whereby the plail}tiff purchased from the company defendants its future accounts receivable having a value of$134;910.00 for the purchase price. of$90,000.00.
The company defendant,in consideration ofthesumof$90,000.00 sold, assigned, and transferred to plaintiff seventeen (12%) percent ofits weekly future sales proceeds, up to anaggregatearnountof$134,910.00. By the agreement, Michael BrentMeiers executed a personal guarantee if the coinpany defendants defaulted on the agreement.
Within weeks the company defendants defaulted under the agreement by failing to remit its sales proceeds t:othe.plaintiffas provided for in the agreement In total, the company defendc1nts remitted tlte amourtt of$6 7 A55. 00 in accordance with the agreement, leaving a balance of$67,455.00 remaining due and owing. Contrary to the guaranty agreement Michael BrentMeiers.did not guarantee the co1npany·defendan~s;
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FILED: KINGS COUNTY CLERK 04/02/2024 10:07 AM INDEX NO. 517032/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/02/2024
performance. Plaintiff also claittis that pursuant totheagreement a non-sufficient fund
-fees or (NSF) in the amount of$50.00 and a default fee in the amount of $22,260.00 is .. .
also due. Plaintiff claims the total amount it is due is $89,765.15 consisting of $67,455.00 and the additional fees totaling $22,310.15. LAW AND APPLICATION
It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez VProspectHospital; 68 NY2d 320,324 [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 (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]).
A failure to make that showing requires the denial of the summary judgment motion, regardless ofthe adequacy of the opposing papers (Ayotte v Gervasio, 8 lNY2d 1062, 1063 [ 1993 ]).Jf prima facie showing has been made, the burden shifts to the opposing party to produce eviderttiary proof sufficient to establish 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 movant1s papers justify holding, as a matter of law, that there is no defense to the cause of ac:tionor that the cause of action or defense has no 1nerit. Furthermore, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine MidlandBank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d.Dept 1990]).
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FILED: KINGS COUNTY CLERK 04/02/2024 10:07 AM INDEX NO. 517032/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/02/2024
In the case at bar, the only sworn testimony submitted by the plaintiff in support . .
of the motion was an affirmation of David J. Austin, Esq., its counsel (hereinafter Austin), and art affidavit of Ekaterina Marciante, its collection manager (hereinafter Marciante). Austin's affirmation demonstrated no personal lmowledge· of any of the· transactional facts allegedinthe complaint. An attorney's affinnation that isnot based upon personal knowledge is ofno probative or evidentiarysignificance(Nerayojfv Khorshad, 168 AD3d 866, 867 [2d Dept 2019], citing Warrington v Ryder Truck Rental, Inc., 35 AD3d 455,456 [2d Dept 2006]). Austin's affinnation stated that the facts in support of the motion were contained in the affidavit of Marciante.
Marciante's affidavit alleged that the purchase price minus agreed-upon fees was paid and referred to a section of the agreement as proofofthe sarne. Marciante, however, offered nothing toprove that any amount was actually paid. The plaintiffdid not proffer
a canceled check, wire transfer, 01· other acceptable proofthatthepurchaseprice was . .
actually paid.
"The essential elements ofa cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance· pursuant to the· contract, the defendant's breach of its contractual obligations; a.nd damages resulting from the breach" (see Cruz v Cruz, 213 AD3d 805 [2d Dept 2023], quoting Klein v Signature Bank, Inc., 204 AD3d 892, 895 [2022] [internal quotation marks omitted]).
To prev1:1.il on the instant 1noticin, it was incum:bent upon the plaintiff to prove each of these eleinents as a matter of law .. The plainti ff provided no evidence deirtoristratirtgthatit perfonned.its part o:fthe agreement by paying the company
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FILED: KINGS COUNTY CLERK 04/02/2024 10:07 AM INDEX NO. 517032/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/02/2024
defendants the agree(t-upon purchase price. Consequently, the plaintiff did not meet its burden of demonstrating as a matter oflawthat the defendants breached the agreement. Inasmuch as the plaintiff did not make a prima facie showing that the company defendants breached the agreement, the obligation of the guarantor was not triggered. As aresult, the plaintiff also failed to show that the guarantor breached the agreement.
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