Zomongo.TV USA Inc. v Capital Advance Servs., LLC 2024 NY Slip Op 33873(U) October 29, 2024 Supreme Court, Kings County Docket Number: Index No. 512735/2021 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 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
SUPREME COURT OF THE STATE OF NEW YORK GOUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 .· ---·---·. ------ ..-------- .-·----... - ... -.--·----·- ..x. ZOMONGO.TV USA INC. D/B/A ZOMONGO.TV USA,. JOCELYNE LISA HUGHES-OSTROWSKI arid JEREMY GENE OSTROWSKI, Plaintiff~, Decisibri and order
- against ,.. Index No. 512735/2021
CAPITAL ADVANCE SERVICES, LLC, Defendant, October 29, 2024 ·.-.---· - .--------.. --.------ . - .-------.-.. ---·-x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #14 & #ls·
The plaintiff has moved pursuant to CPLR §3212 seeking
partial summary judgement. The defendant has opposed the motion.
The cl,efendant has cross-moved seeking to dismiss the complaint
for the failure to engage in discovery. The .plaintiff opposes
that motion. Papers were submitted by the parties arid arguments
held. Afte.r reviewing all the arguments this court now makes the
following determination.
The facts have been adequately recorded in prior orders and
need hot be repeated here.
Conclusions of Law
WhE!re the material facts at issue in a case are in dispute
summary judgment cannot be granted (Zuckerman v. City of New
York, 49 NYS2.d 557, 427 NYS2d 595 [1980]). Genera1l.y, :Lt is for
the jury, the trier. Of fact to .de.terrnin.e the legal cause of any injury, however~ where only one conclusion may be drawn from the facts then the question of iegai cause may be de.cided by the
1 of 6 [* 1] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
trial court as a ma,tter of law (Marino v. Jamison, 189 AD3d 1021,
136 NYS3d 324 [2d Dept., 2021).
The arguments presented by the plaintiff seek the dismissal
of the confession of judgement. However, the amended complaint
contains one cause of action, namely breach of contract (see,
Amended Corri.plaint [NYSCEF Doc. No, 75]). While the complaint
does .reference the confession of judgement in its background
information, the actual breach of contra,ct cause of action does
riot concern the confession of judgement at all. The breach of
coµtract cause of action concerning the February agreement is
bas,ed upon allegations the defendant '' '( i} failed to make "a good
faith approximation of the Specified Percentage" to calculate the
Daily Pa,yment, (ii) failed to deliver the amount contractually
owed to Plaintiffs, (iii) charged zomongo unearned undisclosed
fees, (iv) overcolleCted from Zomongo's account in excess of the
Daily Payment, (v) continued collection after satisfaction, and
(vi) inflated the balance owed f6r satisfaction'~ (see, Amended
Complaint, ':1[167 [:NYSCEF Doc. No. 75]), The allegations regarding
the April agreement are substantially similar (see, Amended
Complaint, '.llT71 [NYSCEF Doc. No. 7 5] ) . The earlier decision bf
the court pointing out that if a breach of contract claim would
be. successful then consequently the ccinlession of judgement woulci
be vacated does not mean the confession of judgetn.ent tart be examined in a vacuum. In fact the opposite is true, first the
2 of 6 [* 2] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
breach of contract claim must be litigated a.nd if successful the
confession cif judgement will necessarily b~ vacated. The vacatur
of the confession pf judgement without regard to the underlying
breach of contract claims is an attempt to bypass such breach of
contract claim. Ih fact, this court specifically denied a
request to amend the complaint to assert a cause of action to
assert a declaratory act.ion the confession of judgement should be
vacated cin the grounds i t was duplicative of the breach of
contract claim ( ~ , Decision and Order dated December 7, 2022
[NYSCEF . . Doc. No. 108] .. ) .
Thus·, considering the breach of contract claim there cah be
no summary determination at this juncture that the plaintiff
breached the merchant agreement in any way. Specifically, there
are surely questions, among others, whether the plaintiff·
breached the agreement by selling its receivables to other
funders.
Next, it is well settleo. that i3. trial -court maintains broad
di._scretion to deny su:i:nmary judgement and to afford parti._es the
opportunity to engage in discovery (CPLR §3212 (f)) . Thus, "the
court has discretion to deny a motion for summary judgment, or to order a continuance to permit affidavits to be obtained or
disclosure to be had;. if facts ess.ential to justify opposition to the motion may exist but cannot then lJe stat~d.. For the court to delay action on the motion, there must be a likelihood.of
3 of 6 [* 3] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
discovery leading to such evidence. The mere hope that evidence
sufficient to de.feat the motion may be uncovered during the
discovery process is insufficient" (Spatola v. Gelco Corp., ;5
AD3d 469, 773 NYS2d 101 [2d Dept., 2004]).
As noted, the plaintiff's motion seeking summary judgement
is based upon one premise, namely there are no questions df fact
the defendant breached the merchant agreement. It is true that a
motion for summary judgment should not generally be granted
before any disco.very has taken place (Fazio v. Brandywine Realty
Trust, 29 A03d 93 9 1 815 NYS2d 4 70, [2d Dept., 200 6] ) . This is
especially true where discovery is necessary to ascertain whether
the plaintiff can establish the contentions found in the
complaint and whether the defendant can est 9 blish any v 9 li¢i
defenses (See, generally, Manufacturer's and Trader's Trust
Company v. Norfolk Bank, 16 Ad3d 467, 791 NYS2d 599 [2d Dept.,
2005]). In any event, there is no prohibition to filing a· motion
for sumn:tary judgement pefore any discovery has taken place in an appropriate case and the opposing party, the defendant in this
case, bears the burden demonstrating further discovery i,s
required (Northfield Insurance Company v. Golob, 164 AD3d 682, 82
NYS3d 192 [2d Dept., 2018]) .
Thus, upon receipt of the motion the. defendant. submitted a
memorandum in opposition and. raise.ct arguments there are
contradictio.ns in the affidavits submitted by the plaintiff and
4 of 6 [* 4] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
that further discovery including depositions is required.
Generally, a party should be afforded an opportunity to conduct
discovery before a summary judgement determination is made
(Salameh v. Yarkovsky, 156 AD3d 659, 64 NYS3d 569 [2d Dept.,
2017]). Therefore, "a party opposing sum:tnary judgtnent is
entitled to obtain further discovery when it appears that facts
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Zomongo.TV USA Inc. v Capital Advance Servs., LLC 2024 NY Slip Op 33873(U) October 29, 2024 Supreme Court, Kings County Docket Number: Index No. 512735/2021 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 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
SUPREME COURT OF THE STATE OF NEW YORK GOUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 .· ---·---·. ------ ..-------- .-·----... - ... -.--·----·- ..x. ZOMONGO.TV USA INC. D/B/A ZOMONGO.TV USA,. JOCELYNE LISA HUGHES-OSTROWSKI arid JEREMY GENE OSTROWSKI, Plaintiff~, Decisibri and order
- against ,.. Index No. 512735/2021
CAPITAL ADVANCE SERVICES, LLC, Defendant, October 29, 2024 ·.-.---· - .--------.. --.------ . - .-------.-.. ---·-x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #14 & #ls·
The plaintiff has moved pursuant to CPLR §3212 seeking
partial summary judgement. The defendant has opposed the motion.
The cl,efendant has cross-moved seeking to dismiss the complaint
for the failure to engage in discovery. The .plaintiff opposes
that motion. Papers were submitted by the parties arid arguments
held. Afte.r reviewing all the arguments this court now makes the
following determination.
The facts have been adequately recorded in prior orders and
need hot be repeated here.
Conclusions of Law
WhE!re the material facts at issue in a case are in dispute
summary judgment cannot be granted (Zuckerman v. City of New
York, 49 NYS2.d 557, 427 NYS2d 595 [1980]). Genera1l.y, :Lt is for
the jury, the trier. Of fact to .de.terrnin.e the legal cause of any injury, however~ where only one conclusion may be drawn from the facts then the question of iegai cause may be de.cided by the
1 of 6 [* 1] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
trial court as a ma,tter of law (Marino v. Jamison, 189 AD3d 1021,
136 NYS3d 324 [2d Dept., 2021).
The arguments presented by the plaintiff seek the dismissal
of the confession of judgement. However, the amended complaint
contains one cause of action, namely breach of contract (see,
Amended Corri.plaint [NYSCEF Doc. No, 75]). While the complaint
does .reference the confession of judgement in its background
information, the actual breach of contra,ct cause of action does
riot concern the confession of judgement at all. The breach of
coµtract cause of action concerning the February agreement is
bas,ed upon allegations the defendant '' '( i} failed to make "a good
faith approximation of the Specified Percentage" to calculate the
Daily Pa,yment, (ii) failed to deliver the amount contractually
owed to Plaintiffs, (iii) charged zomongo unearned undisclosed
fees, (iv) overcolleCted from Zomongo's account in excess of the
Daily Payment, (v) continued collection after satisfaction, and
(vi) inflated the balance owed f6r satisfaction'~ (see, Amended
Complaint, ':1[167 [:NYSCEF Doc. No. 75]), The allegations regarding
the April agreement are substantially similar (see, Amended
Complaint, '.llT71 [NYSCEF Doc. No. 7 5] ) . The earlier decision bf
the court pointing out that if a breach of contract claim would
be. successful then consequently the ccinlession of judgement woulci
be vacated does not mean the confession of judgetn.ent tart be examined in a vacuum. In fact the opposite is true, first the
2 of 6 [* 2] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
breach of contract claim must be litigated a.nd if successful the
confession cif judgement will necessarily b~ vacated. The vacatur
of the confession pf judgement without regard to the underlying
breach of contract claims is an attempt to bypass such breach of
contract claim. Ih fact, this court specifically denied a
request to amend the complaint to assert a cause of action to
assert a declaratory act.ion the confession of judgement should be
vacated cin the grounds i t was duplicative of the breach of
contract claim ( ~ , Decision and Order dated December 7, 2022
[NYSCEF . . Doc. No. 108] .. ) .
Thus·, considering the breach of contract claim there cah be
no summary determination at this juncture that the plaintiff
breached the merchant agreement in any way. Specifically, there
are surely questions, among others, whether the plaintiff·
breached the agreement by selling its receivables to other
funders.
Next, it is well settleo. that i3. trial -court maintains broad
di._scretion to deny su:i:nmary judgement and to afford parti._es the
opportunity to engage in discovery (CPLR §3212 (f)) . Thus, "the
court has discretion to deny a motion for summary judgment, or to order a continuance to permit affidavits to be obtained or
disclosure to be had;. if facts ess.ential to justify opposition to the motion may exist but cannot then lJe stat~d.. For the court to delay action on the motion, there must be a likelihood.of
3 of 6 [* 3] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
discovery leading to such evidence. The mere hope that evidence
sufficient to de.feat the motion may be uncovered during the
discovery process is insufficient" (Spatola v. Gelco Corp., ;5
AD3d 469, 773 NYS2d 101 [2d Dept., 2004]).
As noted, the plaintiff's motion seeking summary judgement
is based upon one premise, namely there are no questions df fact
the defendant breached the merchant agreement. It is true that a
motion for summary judgment should not generally be granted
before any disco.very has taken place (Fazio v. Brandywine Realty
Trust, 29 A03d 93 9 1 815 NYS2d 4 70, [2d Dept., 200 6] ) . This is
especially true where discovery is necessary to ascertain whether
the plaintiff can establish the contentions found in the
complaint and whether the defendant can est 9 blish any v 9 li¢i
defenses (See, generally, Manufacturer's and Trader's Trust
Company v. Norfolk Bank, 16 Ad3d 467, 791 NYS2d 599 [2d Dept.,
2005]). In any event, there is no prohibition to filing a· motion
for sumn:tary judgement pefore any discovery has taken place in an appropriate case and the opposing party, the defendant in this
case, bears the burden demonstrating further discovery i,s
required (Northfield Insurance Company v. Golob, 164 AD3d 682, 82
NYS3d 192 [2d Dept., 2018]) .
Thus, upon receipt of the motion the. defendant. submitted a
memorandum in opposition and. raise.ct arguments there are
contradictio.ns in the affidavits submitted by the plaintiff and
4 of 6 [* 4] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
that further discovery including depositions is required.
Generally, a party should be afforded an opportunity to conduct
discovery before a summary judgement determination is made
(Salameh v. Yarkovsky, 156 AD3d 659, 64 NYS3d 569 [2d Dept.,
2017]). Therefore, "a party opposing sum:tnary judgtnent is
entitled to obtain further discovery when it appears that facts
supporting the opposing party's position may exist but cannot
then be stated" (Brea v. Salvatore, 130 AD3d 956, 13 NYS3d 839
[2d Dept., 2015]). ''A party contending that a summary judgment
motion is premature must demonstrate that discovery might lead to
relevant evidence or that the facts essential to justify
opposition to the motion were exclusively within the knowledge
and control of. the movant" (Rutherford v; Brooklyn Navy Yard
Development Corporation, 174 AD3d 932, 105 NYS3d 518 [3d Dept.,
2019]).
The def end ant is r·equired to present non-speculative and
non..-conclusory assertions the discovery is n.ecessary. The
defendant has met that burden. In this case the defendant has
presented an evidentiary basis that i t should be entitled to
discovery prior to the submission of summary judgement. Thus,
discovery must be exohanged.
Therefore, the motion seeking summary j-udgement is denied as
p:r;ematur~ without prej1Jdic.e. The motion seekipg to .dismiss. the
complaint is denied.. The parties a:re directed to ertga.ge in
5 of 6 [* 5] FILED: KINGS COUNTY CLERK 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024
meaningful discovery including depositions Of all parties. Upon
the conclusion of all discovery any party may then move seeking
r summary judgement.
So ordered, ENTER:
DATED: October 29i 2024 Brooklyn N.Y. Hon. Leon Ruchelsman JSC
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