Merchant Cash & Capital, LLC v Ethnicity Inc.

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Merchant Cash & Capital, LLC v Ethnicity Inc. 2016 NY Slip Op 32593(U) December 8, 2016 Supreme Court, Nassau County Docket Number: 603262/16 Judge: Antonio I. Brandveen 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] SHORTFORM ORDER SUPREMECOURT - STATE OF NEW YORK Prcsent: ANTONIO L IIIIANDVEEN J. S. C. MEITCHANT CASH and CAPIIAL, LLC. TzuAL / IAS PART NASSAU COUNT'Y 35 Plaintiff, - Index No. 603262116 against Motion Sequence No. 001 L'I'HNICITY INC., and LASHAWNNA STANT,EY, Del'endants. 'Ihe following papers having been read on this motion: Notice o1'Motion, Affidavits, & Exhibits Answering Affidavits ReplyingAffidavits Briel-s: l'}laintitf s / Pctitioner's I)efendant's / I{cspondent's .. ... L 2 5 'Ihe plaintiff moves pursuant to CI'LR 3211 fbr an order to dismiss all of the del'endants' affinnativc def'enses lbr lailure to state a cause ofaotion" and uoon documentary evidence because the defenscs are without rnerit. l-he plaintifl'also rnove s pursuant to CPLR 3024(b) to strike scandalous and irrelevant contcnt from the def'endants' answer. 'fhe plaintilT asserts the afTlrn-rative defense of usury should be disrnissed bccause the subject agreernent was not a loan, and the plaintifl-s right to collect payment was [* 2] contingent on factors outside its control. The plaintiffavers it could not have knowingly talren or charged interest at a rate above 25To on a loan or forbearancc of money bscausc it w-as and remains mathematically irnpossible to calculatc a rate of inleresl about 25% on the subject transaction, and because the parties expressly did not intend to enter into a loan transaction. l'he plaintiff maintains the court should strike paragraphs one through and including eight of the def'endants' "separate def'enses" as scandalous, irrelevant and prejudicial claims. In opposition, the defendants contend the parties' transaction was not one for the purchase ofreccivahles, bu1 was a loan. The defense asserts the provisions in the agrecment under which the tlxed daily payrnent was due rcgardless of whether any revenue was received that day. The defense maintains the provisions in the agreement purportedly allowing an adjustment to the daily payment are unenforceable. ln reply, the plaintilT reiterates the usury defbnse fails fbr threshold reasons and should be disrnissed. The plaintifl asserts th€ det'ense arguments arc unsupported and conclusory. "In considering a motion to disrniss for failure to state a cause ofaction pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the cornplaint as true, aocord plaintillls the benelit ofevery possible lavorable inl'erence, and dcterrnine only whether the t-acts as alleged a cause fit within any cognizable legal theory." "A rnotion to disrniss ofaction pursuant to CPLR 32ll (a) (1) rnay be granted only if'docurnentary Page 2 of 5 [* 3] evidence utterly refutcs [the] plaintiffs factual allegations, thereby conclusively establishing a del'ense as a matter of law, " [citzrtions omitted] Bivona v Dannu & Assoc., P.C.,123 A.D.3d 956, 957 I he LZd Dept. 20141. Court aocepts the facts as alleged in the answer as true, accords thc defen{ants the benetit of every possible f'avorable inference, and determines only that the lacts as alleged by the defendants fit within cogniz:rble legal theorics, and not whether the clcf'cndants havc al'llnnative deltnses (CPLI{ 321 l[a]l7l; see llokhour v GTt Retuil Iloldings, Inc.,94 A.D.3d 682 [2d Dept. 2012]). However, the Court deterrnines plaintiff satisfies the burden to disn-riss documentary cvidence (CPLR 321I rhe all ofthe defendants' affinnative defenses upon lal[1]). The plaintiffprovides the agreement dated Novcrnber 30, 2015, executed by the corporate def-endant, through its chiefexecutive ot'ficcr and the natural def'endant, as guarantor ofpayment; the aclvance agreemenl dated November 24,2015, between the same corporate parties as seller and buyer with the natural defendant, as guarantor ofpayment. 'fhe documentary evidence supplied by the plaintill' utterly relutes the delbnse aifirmative delcnses as a matter ol'law. zrgreement among the parties is oornplete, clear and unambiguous on l'he writtcn its l'ace, and mr-rst be enforced according to the plain meaning of the contract's terms (obstfeld v Thermo Niton Analyzers, LLC, 112 A.D.3d 895 [2d Dept. 2013]). In opposition, the defendant contends the written agreement ooncerns a lozrn among the parlies. However, there is no promissory note upon which lhe defendant Page 3 of 5 [* 4] oontentions depend (see generally Hort v Devine,l A.D.3d 266 [2d Dept. 2003 l). Contrary to the defense assertions, the evidence proff'ered by the plaintiffs utterly refutes the affirmative del'ense of a loan. As a matter of law, there is no usury in the abscnce of a loan or forbcaranoe of rnoney (see generally liareri v Roin's Intl.,l g7 A.D.2d 4g l l2d Dept. 19921). CPLR 3024(b) provides that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." This rule is applicable to bills of particulars as well (see Aronis v, TLC Vision Ctrs,, Inc., 49 A.D.3d 576. 5 7g. g53 N.Y.s.2d 621). In revicwing a motion pursuant kr cPLR 3024(b), "the incluiry is wherhcr the purportedly scandalous or prejudicial allegations are relevant to a cause ofaction" (Irving v Foar seasons Nursing & Rehabilitation ctr., lzl A.D.3d 1046, 1047-104g l2d Dept.20l4l). 'l'hc Court dctct rnincs thc paragraphs numbered one through and inclucling e ight in thc answer cntitlcd "separate def'cnses should be stricken pursuant to cpLR 3024(b). The plaintiff shows the defense allegations of criminal usury are scandalous and relevant. In opposition, the defendants fail to show the paragraphs numbered one through and including eight are necessary to the viability of the answer and would cause undLrc pre.judioc b the dcfendants should those itcnrs be strickcn from Lhc altswcr. ORDERED that the branch of the plaintiff s motion is GRAN'I'ED b dismiss all the defendants' affrrmative defenses upon documentary evidence, and it is also, Page 4 of 5 of [* 5] O]tDtrlllrD lhat the branoh <il'the plaintifl's motion is DENIED to dismiss all o1. the dclendants' alllrmative def'enses lbr failure to state a cause ofaction, antl it is furthcr, ORDERED that the branch of the plaintiff s motion is GRANTED to strike scandalous and irrelevant content iiom the def'endants, answer. This will constitute the decision and order ofthe Court. So ordered. Datod: Deccmber 8,2016 ENTER: J. S. C. NON FINAL DISPOSITION EEUTE-qEE DEC 14 2016 NASSAU COUNTY COUNIY CLERK'S OFFICE Page 5 of 5

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