Merchant Cash & Capital, LLC v Fire Suppression Servs., Inc.
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Merchant Cash & Capital, LLC v Fire Suppression Servs., Inc. 2016 NY Slip Op 32590(U) December 16, 2016 Supreme Court, Nassau County Docket Number: 603413/16 Judge: Randy Sue Marber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COT]RT OF THE STATE OF NEW YORK COLINTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE TRIAL/IAS PART 10 MERCHANT CASH AND CAPITAL, LLC, Plaintiff, Index No. 603413/16 Motion Sequence...0l Motion Date... 1 01041 16 -against- FIRE SUPPRESSION SERVICES, INC., and CAREY PICKETT, Defendants. Papers Submitted: Notice of Motion..........................................x Affirmation in Opposition............................x ......................x Memorandum of Law....................................x Reply Af fi rmation.........................................x Affidavit.......... Upon the foregoing papers, the motion by the attorneys for the Plaintiff, MERCHANT CASH AND CAPITAL, LLC, (hereafter "MCC') seeking an order dismissing the affirmative defenses' asserted by the Defendants, FIRE SUPPRESSION SERVICES, INC., and CAREY PICKETT, (hereafter "Fire" and "Pickett") pursuant to CPLR $ 321 1 (b), is determined as hereinafter provided. On September 1, 201 5, the parties executed an Agreement which provided that 'It (l) claim. all of the defenses listing in the Defendants' Answer comprise that the interest rate is usurious. appears that ofonly one [* 2] the Plaintiff, MCC, as buyer, purchased from the seller, the Defendant, Fire, twelve (12%) percent of the proceeds of future sales of Fire in the amount of $67,500.00 for a purchase price of$50,000.00. The Plaintiffcontends that the Agreement provides that Fire's payments of the purchased receivables and future sale proceeds were contingent upon Fire actually generating the purchased receivables and future sale proceeds. The Agreement does not provide for a fixed paynent term as the Plaintiff was only entitled to a percentage of Fire's future sale proceeds and receivables. Counsel for the Plaintiffcontends that the Agreement in no way contemplates a loan of any money and that MCC has no recourse in the event the sale proceeds are not generated. The Defendants have interposed several affirmative defenses alleging that the Agreement is unenforceable on the grounds that it is an illegal agreement for the lending money in exchange ofa secured interest in the receivables ofthe Defendant at of interest. (See Answer attached to the Notice of Motion as a of usurious rate Exhibit "B") The Plaintiff s counse I arsues that the affirmative defenses are meritless. He argues that tle Agreement between the parties was not a loan or forbearance of money. As such. the usurv claim must fail. "CPLR $ 3211 (b) authorizes a plaintiff to move, at any time, to dismrss defendant's affirmative defense on the ground that Christoffersen, T0 A.D.3d 769 l2d Dept. defense, "the it 'has no merit' " (Greco a v. 20i01). In moving to dismiss an affirmative plaintiff bears the burden of demonstrating that the affirmative defense is [* 3] 'without merit as a matter of law' ". (1d., quoting Vita v. New York l{aste Servs., LLC, 34 A.D.3d 559 [2d Dept. 2006]; see Bank of Am., N.A. t. 414 Midland Ave. Assoc., LLC,78 4.D.3d746 [2d Dept. 2010]) The Defendants' contention that the Agreement is usurious is without merit. A corporation is prohibited from asserting a defense of civil usury. Additionally, individual guarantor ofa corporate obligation is also precluded from raising such (See Arbrcova v. an a defense. Skalet,g2 A.D.3d 816 [2d Dept. 2012]) The terms of the Agreement do not constitute a loan within the meaning of the usury laws. (See Kaufman v. Horowitz,778 A.D.2d 632 [2d Dept. 1991]) Accordingly, it is hereby ORDERED, that the Plaintiff interposed by s motion to dismiss the affirmative defenses, the Defendants, is GRANTED. This constitutes the Decision and Order of the Court. All applications not specifically DATED: addressed herein are DENIED. Mineola, New York December 16,2016 Hon. Randy Sue Marber, J.S,C. ENTffiffiHD DEC 2I 2016 NASSAU COUNTY COUNry CLERK'S OFFICE tF}{nfl\Dyg.E MAmm
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