Colonial Funding Network, Inc. v CCI Bldrs. & Devs., Inc.

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Colonial Funding Network, Inc. v CCI Bldrs. & Devs., Inc. 2021 NY Slip Op 32794(U) December 17, 2021 Supreme Court, New York County Docket Number: Index No. 653588/2016 Judge: Debra A. James 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. [* 1] INDEX NO. 653588/2016 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 12/17/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA JAMES 59 Justice ----------------------------------------------------------------- ----------------X 653588/2016 INDEX NO. COLONIAL FUNDING NETWORK, INC., as servicing provider for CORE BUSINESS FINANCE, MOTION DATE MOTION SEQ. NO. Plaintiff, 11/29/2021 007 - V - DECISION + ORDER ON MOTION CCI BUILDERS & DEVELOPERS, INC. and MICHAEL SHANE, Defendants. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 007) 142, 143, 144, 145, 146,147,148,149,150,151,152,153,154,161,162,166,167,168,169,171,172,173,174,175,176, 177, 178, 179 were read on this motion to/for DISCOVERY ORDER Upon the foregoing documents, it is ORDERED that the cross motion of defendant Michael Shane to dismiss the complaint is DENIED; and it is further ORDERED that plaintiff's Builders & Developers, motion to compel defendants CCI Inc. and Michael Shane to comply with the Order dated January 23, 2020 of this Court and with the Subpoenas Testificandum and Information, each dated September 27, 2019, is GRANTED and it is further ORDERED that defendants CCI Builders & Developers, Inc. d/b/a CCI Builders and Developers ("CCI") and Michael Shane shall produce to plaintiff, within thirty days of service of a copy of this Order with notice of entry, the following documents: 653588/2016 COLONIAL FUNDING NETWORK, INC. vs. CCI BUILDERS & DEVELOPERS, Motion No. 007 1 of 4 Page 1 of4 [* 2] INDEX NO. 653588/2016 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 12/17/2021 ( i) all personal bank records of defendant Michael Shane, including bank account statements in which such defendant has an interest, either directly or indirectly, from January 1, 2016 to present; (ii) all bank records of CCI working capital SunTrust, from January 1, 2016 to present; (iii) a list of all bank accounts in which defendant Shane is/was an authorized signatory, from January 1, 2016 to present; (iv) a list of all entities in which defendant Shane has an interest, either directly or indirectly; (v) all corporate formation documents and documents showing present ownership and the managerial structure of entities with which defendant Shane is affiliated; account at and it is further ORDERED that defendant Shane shall, production of the aforesaid documents, deposition via a within appear as virtual platform to be 30 days from a witness for chosen by counsel for plaintiff, on a date and at a time convenient for the parties. DECISION Defendants previously moved, by cross motion, to vacate the ex parte order dated February 6, 2018 (NYSCEF Doc. No. 18), which struck defendants' answer for their failure to respond to plaintiff's discovery demands. Such cross motion, which appended neither an answer, verified by a person with knowledge of the facts; nor an affidavit of defendant Shane; nor any excuse for their failure to respond to discovery demands, was denied by Order dated April 29, 2018 (NYSCEF Doc. No. 55). 653588/2016 COLONIAL FUNDING NETWORK, INC. vs. CCI BUILDERS & DEVELOPERS, Motion No. 007 2 of 4 Page 2 of 4 [* 3] INDEX NO. 653588/2016 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 12/17/2021 Defendant Shane never moved to reargue or appeal such Order dated April 29, 2018. Plaintiff is correct that, therefore, such Order is law of the case and may not be disturbed. See Hampton Val. Farms, 701 Inc. v Flower & Medalie, 40 AD3d 699, 700- (2d Dept 2007). In his cross motion at bar, defendant Shane argues, for the first time, that his default should be set aside pursuant to CPLR 5015 (a) (3) on the grounds that the subject of this lawsuit, the Revenue Based Factoring (RBH/ACH) Agreement dated January 21, 2016 (Agreement) is fraudulent. that the Agreement is fraudulent as, Defendant Shane contends in reality, it constitutes a usurious loan. This court agrees with plaintiff that the language in the Agreement that the "(f)ailure to provide all of their bank statements in a timely manner or missing a month shall forfeit all rights to future reconciliations" (bold added) renders its reconciliation provision mandatory and not precatory. Such language distinguishes the matter at bar from the facts of Davis v Richmond Capital Group, 194 AD3d 516, 517 where, among other factors, (1 st Dept 2021), the appellate panel found that reconciliation provision was discretionary in nature, and plaintiff merchants alleged that defendant finance company refused to permit reconciliation. 653588/2016 COLONIAL FUNDING NETWORK, INC. vs. CCI BUILDERS & DEVELOPERS, Motion No. 007 3 of 4 Page 3 of 4 [* 4] INDEX NO. 653588/2016 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 12/17/2021 Defendants make no argument in opposition to plaintiff's motion compelling compliance with the subpoenas issued by plaintiff. Therefore, plaintiff is entitled to the relief that it seeks. P- ~ ,d - } ~ 20211217180243DJAM ES2967CFF83D484657 ABFF4BBA23EA9143 12/17/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: rn 8 B:::::~•::.,.::.::~~: B DEBRA JAMES, J.S.C. NON-FINAL DISPOSITION CASE DISPOSED GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 653588/2016 COLONIAL FUNDING NETWORK, INC. vs. CCI BUILDERS & DEVELOPERS, Motion No. 007 4 of 4 • • OTHER REFERENCE Page 4 of 4

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