Prosperum Capital Partners LLC v. Pamelas List LLC

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Prosperum Capital Partners LLC v Pamelas List LLC 2024 NY Slip Op 30574(U) February 20, 2024 Supreme Court, Kings County Docket Number: Index No. 520945/2022 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.

FILED: KINGS COUNTY CLERK 02/23/2024 04:35 PM INDEX NO. 520945/2022 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/23/2024

At an IAS T ehn; 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 20th day ofFebruary 2024

HONORABLE FRANCOIS A. RIVERA -- ·-- ·----· --· --------. ----- . ---------- ··--· ---· . ------· - ·---· ---X PROSPERUM CAPITAL PARTNERS LLC DBA ARSENAL FUNDING,

Plaintiff, DECISION & ORDER Index No. 520945/2022 -against-

P AMELAS LIST LLC DBA PAMELAS LIST AND PAMELA LYNN PAULSON,

Defendarits. ------------------.... -- --------.. ---------- --------. -. --. --------·X Recitation in accordance with CPLR2219 (a) of the papers considered on the notice of motion filed on August IO, 2023, by Prospetum Capital PartnetsLLC D/B/A Arsenal Funding (hereinafterthe plaintiff) for an order pursuant to CPLRJ212granting summary judgment in its favor on its causes of action for breach of contract, breach ofa guaranty agreement and attorney;s fees against Pamelas List LLC dba Pamelas List and Pamela Lynn Paulson (hereinafter the defendants). The motion is unopposed .

..Notice of Motion -Statement of Material Facts -Affirmationin Support -Affidavit in Support Exhibits A-E -Meiuorandwn oflawin support

BACKGROUND

On Jt1ly 22, 2022, plaintiff c91nmenced the instant action by filing a .summons and

verified complaint ,vith the Kings County Clerk's office (KCCO). Ort July 27, 2022;

FILED: KINGS COUNTY CLERK 02/23/2024 04:35 PM INDEX NO. 520945/2022 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/23/2024

Footnotes

[1] of 6 [* 1] defendants interposed and filed ajointverifie d answer with the KCCO. The verified complaint alleges thirty-three allegations of fact insupport of three denominated causes of action. The first is for breach of con.tract, the second is for breach ofa guaranty agreement, and the third is for attorney's fees based on an alleged breach of the agreement. The verified complaint alleges the following salient facts; Pursuant to a receivable purchase agreement{hereinafter the agreement) and personaLguaranty dated April 8, 2022, the plaintiff purchased from theLLC defendant its future accounts . . . receivable having a face value of$149,000. 00. On or about April 8, 2022, the LLC defendant, in considen1tion of the sum of $100,000.00, sold, assigned, and transferred to plaintiff eight (8%) percent ofits future sales proceeds, up to an aggregate amount of $149,000.00. By the.agreement, Pamela Lynn Paulson executed a personal guarantee ifthe LLC defendant defaulted on the agreement.. On June29, 2022, theLLC defendant defaulted under the agreement by failing to remitits sales proceeds to the plaintiff as provided for in the agreement. In total, the LLC defendant remitted the amount of $58,237.50 in accordance with the agreement, leaving a balance of $90,762.50 remaining due and owing. Pamela Lynn Paulson did not pay the amount due. although duly demanded. The plaintiffclai1ns that there is now due and payable to plaintiff,by the defendants, the principal balance sum of$98,857.5 0, as well as attorney's fees of $22,690.63 resultingin a total sum of $121,548, 13.

[2] of 6 [* 2] LAW AND Al>PLICA.TION The defendants did not _submit opposition. to the.instant motion .. However, a summary judgment motion should not be grarited merely because the.party-against whom judg1rtent is smight failed to submit papers irt oppositipn to the motion, i.e. defimlted '.(Liberty Taxi Mgt., 1nc. v Gfnchetman, 32 Ab3-d 276~ 27tLn [t"-st Dept 2006], ·citing .Verm(mt Teddy Sear Co., v 1-800 B.eargram .Co., 373 F3d 24t;_.244 [2d Cit 20.04] (''the failure to oppose a motion for summary judgrhentalone-d oes·not justify the granting of· sUnimary judglnent. Instead, the ... court 1nust stiU assess whethet the 1noving party has fulfilled its burden of-demonstrating that there is no genuine issue of m~teiial fa¢t and its entitlement tojudgrnentas a matter of law'']; see Cughiiv System Lumber Co.? Inc., 11 i AD2d 114, j 15 [lstDept 1985]). It is weil established tp:al summary judgment .ni_ay be -granted only when no triable issue-of fact exists (Alvarezv ProspectHospit at 68NY.?d 320,.324 [19-86]). The bui;den is upon. the moving party· to make a pri ma :faci e showing that he or she is entitled to srnrtmary judgment as a rriatter:of law by presenting evidence in admissibie form demonstrating the abs.e.n~e of material facts (Giuffrida v Citibank,• 100 NY2d 72, 8l "[2003)). A failure to make that showing requires the dental ofthe summary judgment moti9n, regardless of the adequacy ofthe:·opposing.p apers (Ayotte· v Gervasio, &1 NY2d I 062, 1064 [ 1993])-. If a prima facie showh1g has been made, the:burden sbi fts to the opposing_paft)' to produce evidentiary proof suffic_ientto estabHs:h the exi~tence of material iss:ues of fact (Alvarez, 68 NY2d at" 324}.

[3] of 6 [* 3] Pursuant. to CPLR 3212 (b)~ a· court will grant a· irtotion fot sum111aty j:udgnient upon adetermination that the movant1 s papers-justify holding, as a inatter of law, that. there is .no defense to the cause a faction or that the cause ofaction or defense has no merit. Futt:hermore, all of the evidence ·mustbe viewed in theJight ni.ost favorable to the opponent of the motion .(Marine, Midland Bank v Dino & At.tie.'s Autorru;ztic Tra1Js1nission Co., 16.8 AD2d 610 [2d Dept.1.9.901). In the c0;se at ba:r, the only sworn testimony submitted by the plaintiffin·-support of the .motion was an affirmati011 of Jeffrey Parella, its courisel{hereinafter Parella)i and an affidavit of Marlen Kruzhkov~ its irtanagiilg . .. meinber.(her.einafter··!\ruzhkov). PatellE(s . affirmat_ion demonstrated no personaLknowledge of any of the transactional fa:cts alle_ged in the complaint. An attorney's affinnation that is not based upon personaflmowledge is of no ·probative cir evidentiary sigriificance (Nerayojf v Khorshad, 16 8 AD3d ·866, 867 [2d Dept 2019-1,_ citing Warrington v Ryder Truck RentaZ, Inc.,., 35 AD3d 4-55, 456 [2d Dept 2006]). Parella1 s affirmation states that the facts in support of the niotion are, contained in the affidavitofKruzhkov. Neithei."the verified cmnplaint _1101; tbe affidavit o.fKruzhkov averred that the agreed-.upon purchase_price of$IOO,OOO.OO fot the defendaI)t's . future r~ceivables was actually paidto the LLC defendant. Paragraph eight·ofthevetified complaint.stated the following-: ·"P.laintiffpaid B1,1s_io~ss De.fend::trit. the Purchase Price of $1 QO, 000.00 minus .agreed liport fees listed on Pla,intiffs_Exhibit A"·page: 14 at,r 3, and a sum of 11 $68,337.50 for Merchantis previo1,1s open balance on another merchant cash agreement(Pleas e refer to.Exhibit B)., thu:,;; fulfilling i1$obligation op. the Agreement.''

[4] of 6 [* 4] -~----·····-········-······· Paragraph fifteen ofKruzhkov's affidavitstated the following: "'·'On April 8, 2022, Plc1.intiff paid .Business Defendant the- Purchase Price of $100,000.00 minus-agreed upon ofigirtationfeeo f$6,000.00 (see Plaintiffs Exhibit 11 A 1' atpage: 14,,r 3), thus fulfilling its· obligation. on the f\.greeinent. See. Plainti:ff-s Exhibit 11B 11 in support ofSunimary Judgm:ertt Motiort;p Kru?:hQv averred that_ annexeq as exhibit B to.-the motion was ·proof of the _ plaintiffs fundiQ.g of the purcha,se price. The document, however, contained three redactions, one of them being to the right of the word balance. The document was not authenticated-.. Nor did. Kruzhkov explain how to read it. It was not prob~tive. Moreover; itwa!i'not consistent wi.t)l the allegation of fact in the verified complaint orin Kruzhov~s affidavit pertaining to the funding of the purchase price. In fact_, the verified complaint and Kruzhov's affidavit were inconsistent with each other. The essential e.leiliertts. of a cause of action to r~cover <:lam ages for bi:e.ach of contract are the existence ofa contract, the plaintiff s--_petformance pursuant to the contract, the defendant's breach ofits contractual obligations, and damages resulting; from the breach (see Ci'uz v Cruz, 211 AD3d 805,-"807 [2d Dept 2023]). to prevail on the instant motion,_ it was incumbent upon the plaintiffto prove each of these elements as ,a matter of law. The,piainti.ffpro vided conflicting evidence:.and failed to demonstrate:that itperformed its part of the agreement by paying the defendants the.agreed-upon purchase price. Consequently,the :-plaintiffclid not.meet its burden of demonstrating as a matter of law that the defendants breached the, =agreem~nt. In.asrnuch as the plaintiff did not make a prim a facie showing that the LLC defendant: breached the agreement, the obligation of the guarantor was not triggered. As a result) the plaintiff

[5] of 6 [* 5] also failed to show that the guarantor breached the agreement. Inasmuch, as the plaintiff failed to demonstrate that the defendants breached the agreement, the third cause ofaction for attorney's fees based ona breach of the agreement is also unsupported, The motion is therefore denied without regard to the sufficiency or lack of opposing papers (Cugini vSystemLbr. Co., 111 A.D.2d ll4j 115 [1st Dept 1985]). CONCLUSION The motion by Prosperum Capital Partners LLCD/B/A Arsenal Funding for an order pursuant to CPLR 3212. granting summary judgment in its favor.onits·causes of action for breach of contract, breach of a guaranty agreement, and attorney;s fees as against Pamelas List LLC dba Pamelas List and Pamela Lynn Paulson is denied. The foregoing constitutes the decision and order of the Court. ENTER: ~~~~ J.S.C.

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