Emmy Capital Group LLC v Fenix Trans Inc

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Emmy Capital Group LLC v Fenix Trans Inc 2023 NY Slip Op 33032(U) August 30, 2023 Supreme Court, Kings County Docket Number: Index No. 537206/2022 Judge: Francois A. Rivera 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. 537206/2022 FILED: KINGS COUNTY CLERK 08/31/2023 10:02 AM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 08/31/2023 At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center. Brooklyn, New York, on the 30th day of August 2023 HONORABLE FRANCOIS A. RIVERA DECISION & ORDER EMMY CAPITAL GROUP LLC, Plaintiff, -against- Jndex No.: 53 7206/2022 Oral Argument: 8/17/2023 FENIX TRANS INC and GOLUB KOCIC, Cal. No.: 27, Ms. No.: I Defendants. Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by Emmy Capital Group LLC (hereinafter Emmy or plaintiff) on May 31, 2023, under motion sequence one, for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability on the claims asserted in its complaint against Fenix Trans Inc and Golub (hereinafter the defendants). There was no opposition to the motion -Notice of Motion -Affidavit in Support Exhibits A-B -Affirmation in Support Exhibit I to 3 -Statement of Material Facts -Memorandum of law in support BACKGROUND On December 21, 2022, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On January 25, 2023, the defendants interposed and filed a joint verified answer with the KCCO. The verified complaint alleges fourteen allegations of fact in support of two causes of [* 1] ofa personal 5 action, namely, breach of contract and breach1 of guaranty agreement. The complaint INDEX NO. 537206/2022 FILED: KINGS COUNTY CLERK 08/31/2023 10:02 AM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 08/31/2023 alleges the following salient facts. Pursuant to a receivable purchase agreement and personal guaranty dated June 17, 2022 (the "Agreement"), plaintiff purchased a percentage of the defend;nt-seller's total future accounts receivable up to the sum of $67,455.00 ("Purchased Amount") in exchange for an upfront purchase price of $45,000.00. Pursuant to the Agreement, plaintiff was authorized to collect via an ACH electronic· debit of the future receivables, until such time that plaintiff collected the total amount of purchased receivables. The Agreement contains the-defendants express covenant not to revoke its ACH authorization to plaintiff or otherwise take any measure to interfere with its ability to collect the future receivables. On June 30, 2022, the defendants materially breached the terms of the Agreement by changing the designated bank account without plaintiff's authorization, by placing a stop payment on plaintiff's debits to the account, or by otherwise taking measures to interfere with the ability to collect the future receivables. Pursuant to the agreement in the event of defendants' default plaintiff may declare the total amount of receivables purchased and n~t delivered as immediately doing owing to plaintiff including costs and fees plaintiff now has a balance of $71,l 08.81 and undelivered future receivables subtracting the amount of receivables plaintiff has previously collected from the I 1· ~ II I ) r I defendant under the agreement from the total future receivables purcha~ed by plaintiff there is r I I presently doing owing from defendants to plain ti ff the amount of $71, 108.81. The Agreement contains the unconditional guarantee of the guarantor defendant of making payment in the event of default under the Agreement by the defendant seller. As a result of the defendant seller's breach and default under the Agreement as set forth above and pursuant II I r I I ,. to the guaranty, there is presently due and owing from the defendant guarantor to plaintiff the [* 2] 2 of 5 I' FILED: KINGS COUNTY CLERK 08/31/2023 10:02 AM NYSCEF DOC. NO. 23 INDEX NO. 537206/2022 RECEIVED NYSCEF: 08/31/2023 LAW AND APPLICATION There is no opposition to the instant motion. However, a summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion, i.e. defaulted (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276,278 n [1st Dept 2006], citing Vermont Teddy Bear Co., v 1-800 Beargram Co., 373 F3d 241 [2nd Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the ... court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law"]; see Cugini v System Lumber Co., Inc., 111 AD2d 114 [1st Dept 1985]). It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [ 1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, JOO NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 ( I 993 ]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324). Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense [* 3] 3 of 5 to the cause of action or that the cause of action or defense has no merit. FurthermnrP l'l Tl th .. INDEX NO. 537206/2022 FILED: KINGS COUNTY CLERK 08/31/2023 10:02 AM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 08/31/2023 evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's A utomalic TransmiCapita!on Co., 168 AD2d 610 [2nd Dept 1990]). The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach (see Cruz v Cruz, 213 AD3d 805 [2nd Dept 2023]). In the case at bar, the only sworn testimony submitted by the plaintiff in support of the motion was an affirmation of Steven Zakharyayev (hereinafter Zakharyayev), its counsel, and an affidavit of Zhi Ying Zhu, its CEO (hereinafter Zhu). Zakharyayev's affirmation refers to the pleadings and an affidavit of service of the pleadings. Zakharyayev's affirmation, however, proffered no allegation of fact and demonstrated no personal knowledge of any of the transactional facts alleged in the complaint. An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance (Nerayoff v Khorshad, l 68 AD3d 866, 867 [2d Dept 2019], citing Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]). Plaintiff used Zhu's affidavit to authenticate the Agreement which was allegedly breached by the defendants. Zhu averred that he is CEO of the p !ainti ff and, as such, has personal knowledge of its business practices and procedures. He fu11her averred that the factual allegations proffered in support of the motion were obtained reviewing the plaintiffs business records. He then referred to the two documents attached to the motion, namely, the Agreement and a document he described as a remittance history. It is noted that Zhu did not aver that he [* 4] 4 of 5 was a signatory to the Agreement or that he partici ated in the execution of same. INDEX NO. 537206/2022 FILED: KINGS COUNTY CLERK 08/31/2023 10:02 AM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 08/31/2023 Zhu annexed the document denominated as a remittance history without explaining how it was created or how to read it. It is not self-explanatory. In paragraph nine of his affidavit Zhu stated: "On or about June 30, 2022, Merchant defaulted under the provisions of the Merchant Agreement by placing a stop-payment on plaintiffs debits to the account or by otherwise taking measures to interfere with plaintiffs ability to collect the future receivables" The documentary evidence submitted, however, did not establish that the defendants placed a stop payment on plaintiffs debits or did anything which would have constituted a default under the Agreement. Also, the plaintiff presented no evidence demonstrating that it provided the defendants with the purchase price of the future receivables. In sum, the plaintiff did not eliminate all material issues of fact regarding its own performance under the Agreement. Furthermore, plaintiffs evidentiary submission did not make a prima facie showing that the defendants breached the Agreement. Accordingly, the motion is denied regardless of the sufficiency, or lack thereof, of opposing papers (Cugini v Sys. Lumber Co., 111 AD2d 114 [2nd Dept 1985]). CONCLUSION The motion by plaintiff Emmy Capital Group LLC for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability on the claims asserted in its complaint against defendants Fenix Trans Inc and Golub is denied. A copy of this decision and order, along with notice of entry, shall be served upon defendants and filed with the Court within 20 days of entry. The foregoing constitutes the decision and order of the Court. ENTER: J.S.C. [* 5] fMNC01S A. 5 of HON. 5 J.S.C. RIVERA

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