Libertas Funding LLC v Ultimate Jet LLC

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Libertas Funding LLC v Ultimate Jet LLC 2022 NY Slip Op 33206(U) September 19, 2022 Supreme Court, Kings County Docket Number: Index No. 514223/2022 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. INDEX NO. 514223/2022 FILED: KINGS COUNTY CLERK 09/22/2022 01:32 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 09/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCTAL '8 ------.--·. --·--. -- ..... - . -- ·--.------·. --------x LIBERTAS FUNDING LLC, Plaintiff, - against - Decision and order Index Nb. 514223/2022 ULTIMATE JET LLC D/B/A ULTIMATE AIR SHUTTLE; ULTIMATE JETCHARTERS, LLC D/B/A ULTIMATE AIR SHUTTLE; WOOSTER OHIO INVESTMENTS LLC; MRBH CAPITAL LLC and JOHN GORDON~ Def end ants, September 19, 2022 -· -----·---- ··-----------------·---.----. - ··---x PRESENT: HON. LEON RUCHELSMAN The plaintiff has moved seeking summary judgement pursuant to CPLR §3212 arguing there are no questions of fact the defendants owe the money sought. motion. The defendants oppose the Papers were submitted by the parties and after reviewing all the arguments this court how makes the following determination. on October 29, 2019 and November 25, 2019, the plaintiff a merchant cash advance funding provider entered into with defendants who resic:l.e in Ohio. a contract Pursuant to the agreement the plaintiff purchased $1,111,525 and $744,625 respectively of defendant' s future receivable for $ 8 65, 0 00 and $.5 7 5, 0 00 . Pursuant to the first agreement the defendants were required to remit a daily a~6unt bf $4,811.&0 .and pureuant to the second ag re erhent were re quired to remit a da.i l y amount of $1,295 . de£enda_nt John GorclorJ. guaranteed bot:1-). agreements. asserts [* 1] .. The The plaintiff the defendants stopped remittances in March 202.2 and. now 1 of 4 ····························--···-···-·--------------------------------- INDEX NO. 514223/2022 FILED: KINGS COUNTY CLERK 09/22/2022 01:32 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 09/22/2022 owe $59.9,839.40 and $302,187 for a total of $902,206.40. This action was commenced and now the plaintiff seeks summary judgement arguing there can be hd questions of f.act the defendants owe the amount outstanding and judgement should be granted in their favor. The defendants oppose the motion. Conclusions of Law Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. C:ity of New York, 4 9 NYS2d 557, 427 NYS2d 595 [ 198 0 ]J . Generally, it is for the jury, the triei of fact to determin~ the legal cause 0£ any injury, however, where only one conclusion may he drawn from the facts then the que·stion of legal cause may be decided by the trial court as a matter of law (Marino 136 NYS3d 324 v. Jamison, 189 ADJd 1021, [2d Dept., 2021). It is well settled that to assert the defense of novation there must be a previously valid obligation, the agreement of all parties to a new contract, the extinguishment of the old contract and a valid new contract (see, Grimaldi v. Sangi; 177 AD3d 1208, 113 NYS3d 771 [3 rd Dept., 2019]). Thus, a $Ubsequent agreement does not extinguish an earlier agreement unless there is clear intent the subsequent a:gre.ement intended to so substitute the e.arlier one (Rockwood v. Vi.carious Visions Inc., 4 4 AD3cj. 122 9., 843 NYS2d 867 [3 rd Dept,, 2Q07]) .. Therefore.i t1.r1less a second 2 [* 2] 2 of 4 INDEX NO. 514223/2022 FILED: KINGS COUNTY CLERK 09/22/2022 01:32 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 09/22/2022 agreement extinguishes earlier obligations no suc::h novation exists (Sudit v. Roth, 98 AD3d 1106, 950 NYS2d 709 [2d Dept., 2012]). By contrast an executory accord, essentially, is an agreement to accept at some future time a stipulated performance in satisfaction or discharge in whole or in part o.f any present claim or obligation and a promise to render such performance in satisfaction or in discharge of such obligation (see, GOL §15501 (l) l. A reconc:Lliation provision within a merchant cash agreement is neither a nov?tion nor an executory accord, The provision does not discharge previously existing oblig.ations (novation) nor does it consist of substituted performance for existing claims (accord). Rather, the reconciliation provision, as part of the agreement itself, permits the change of daily remittances based upon changed revenue or unexpected decreases in receipts. Thus, pursuant to any :reconciliation provision the only accommodation i t affords is smaller payments over a longer period of time. Any extension o.f time in which to pay obligations is not a novation (Spiro v. Reade Pure Food, 601, 267 NYS2d 794 [City Court Bronx County 1933]). 149Misc Further, although not explicit within the agreement, it is surely implicit that the reconciliation provision wou,ld not change any other provisions of the agreement and woµld .riot act as a novation (see, HSH Nordbank AG New York Brarich v. Street, 421. Fed.Appx. 70 [2d Cir. 2011]) . 3 [* 3] """' "' ,,, __ """""'""''"""" __ __ ,, , ___ ,, ____ ,_,_,_, _____________________________ 3 of 4 FILED: KINGS COUNTY CLERK 09/22/2022 01:32 PM NYSCEF DOC. NO. 40 INDEX NO. 514223/2022 RECEIVED NYSCEF: 09/22/2022 Th.e de.fenda.n-t John Gordon argues the gLiar-ante~s. cannot impose- any liability upo_n hirn .because he .sought;. and obtained reconc.iliatio ns ·pursuant· to reconciliatio n provisions and tl'lus ·n·ovati.ons o.f the _agreeme_nts we.re created,. such novations exist. However, ,;1.s noted, no-· Furthe:i;, the mere fact that Gordon may no longer work for the de-fendant companies· does rtot affect his f,3.tatus: as a :guarantor. Therefore,. no issues .of fa-ct have: been raised which would. demand a denia_l of the motion for summary judgement . Cons,e.quen t 1 y, the mot ion se.e king s umm:a ry judgement is g,ranted. So orde_red. ENTER: DATED: ·September 1~, 2022 Brooklyn N.Y. Ron. Leon R,uC:helsmah: JSC 4 [* 4] ··········-·· 4 of 4 --------- --------- ----··-··--··· --·------ ----~---

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