Libertas Funding LLC v. CDM Plumbing Inc

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Libertas Funding LLC v CDM Plumbing Inc 2024 NY Slip Op 30909(U) March 19, 2024 Supreme Court, Kings County Docket Number: Index No. 534890/2023 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.

FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 534890/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE.OF NEW YORK COUNTY OF ~INGS: CiVIL tERM! COMMERCIAL PART 8 .., - ---·-----·-·--- ----,------ -- .. --.-.---·--· ---x· LIBERTAS FUN.DING LLC~ Plaintiff, Decision and order

- against - tnde~ N¢. 5l4ijjO/2-023

CDM PLUMBING INC OBA ROTO-ROOTER; CDM WATER RESTORATION INC and MICHAEL THOMAS MERZ; DALE ANN- MERZ·, Defendants, March 19, 2024 -------- ~-- .- . --- ~----~-----~ ·. - .· -- ... x 'PRESENT: HON. LEON RUCI:IELSMAN Motion Seq.. #¹

The plaintiff has moved seeking summary judgement pursuant t.,q CPL·R §3212. argu.ing th.eie are nci questions ot· fact ·the

d,efendants owe the money sought. The plaintiff has also moved

·s·eeking to dismiss defendant's counterclaim s. The de:f eI1dants

h,ave opposed tilce rnotion,s. Papers we.re submitted by the pa,rties

and afte.r reviewing all the arguments thi.s court now makes the

follo:wing determinatio n..

On Mc!.Y 10, 2023 and September 6, 2023,-the piaintiff a,

merchant cash adv.ance funding provider entered into contracts ·with de·fendan ts who reside i rt Texa-s . Pursuant to th~ a gre.ement s

the plaintiff purchased $325,QbO of defendant's future receivable for $250,00'0 and $'130;.0-00 of defen.dartt' s- future receivabl:·es fo.r

$13,0,, 000. The defendants. . gµaranteed tp.e a.9r.1;=em:ents" The

plaintiff asserts the defe-ridants stopped rerilittanc~s _in November

2023 arid now owe· $214·, 313'. 6-5. Furthe.r, the_. plaintiff assert~. the

defendant.bre ached the agreement PY by changing the designated

barik account without Plaintiff's authorization and by placing a

FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 534890/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/19/2024

Footnotes

[1] of 4 [* 1] s.top payment on the· account. This --action was ·c6mrnenc.ed an,d now the pl_aintiff seeks surpmary judgement arguing there can: be no questions of fact the defendants owe the amount outstanding and j_udgernent should ·b:e granted in the,ir favor. The defE:mdan_t:s oppose tne motion arguing there are questions of fact which p-reclude a suinmary· determinatio n at this time.· Conclusions of Law Where: the material facts at issue in a ca.se are in dispute surtuna.ty judgment cannot be granted ( Zuckerman v. City of New York, 4"9 NYS2d 557, 427 NYS2"d 595 [1980]). Gen·erally, it is for .the jury, the t:i:-ier of f:act to determine the legal c·a-use ·o_"f any injury, however, wht=re only one conclusion may be drawn from the £_-acts then the question of leg-al cause ma"y be= decided by· the trial: court as a matter. of 1-aw (Marino v·. Jamison, 189 -·Ao.3-d 1021_, i36 NYS3d 324 [2d. Dept., 2021). Concerning establishing- any default,. it is w,ell sett;led tl'J.at "a.proper foundation for the admission of a business record must be provided by someone with personal. knowledge of the maker·' s- business practices ,and proc_edur(;;S" (Cit.iban"k N. A. v . . Cabrera, 130 AD3d 861, 14 NYS3d 420 [2d Dept .. , 2015]). Thus, where a party introduces evioencie= of' the ex.isteri.ce of J,.oans, pe;rsoncal guaran_t:.ees- and the defendant's failure to make payments according to the. terms of the ins_truments then summary judgement 2

[2] of 4 [* 2] is proper (see, JPMorgan Chase Bank N. A., v. Bauer, 92 AD3d 641,

[938] NYS2d 190 [2d Dept., 2012]) . In this case the plaintiff submitted the affidavit of Ricky Palaci'o a customer service represent ative of the plaintiff . He stated that he reviewed the plaintiff 's records in connectio n with the loans extended in this case. He further stated that all the documents he reviewed were maintaine d in the regular course of business and all such records were made near their occurrenc e with someone who had knowledge at that time and that the plaintiff 's standard practice is to keep such records in the. ordinary course of l:msiness. Thus, the plaintiff has establishe d the admissibi lity of the records relied upon since Mr. Palacio had knowledge and familiarit y of the plaintiff 's practic:;es and procedure s (see, Cadlerock Joint Venture L. P. v. Trombley:, 150 AD3d 957, 54 NYSJd 127 [2d Dept., 2017]), The specific . record in . support of the motion seeking sµmmary judgement is remittanc e payment statement s which demonstra tes that certai.n payments due were never.£orw arded to the plaintiff ( see; NYSCEF Doc. No. 4 and Doc. No. 5) . The ref ore, the proper .foundatio n for the admission of such document has been provided by Mr. Palacio who establish familiarit y with the record keeping pr_actices of the plaintiff ( ~ ; JPMorgan Chase Bank N. A. • v. Rads Grbtip Inc,, 88 AD3d 766, 930 NYS2d 89,9 [2d Dept., 2011]). Therefore , the plaintiff establishe d its entitleme nt to 3 ------- ------- ------- -------3 ------- [* 3] of 4 ------- --······ ··-·--· ··-· summary judgement. The defendants insist the plaintiff has failed to eliminate all questions of fact. However, upon the presentation of the evidence noted above, the plaintiff has s·ufficiently demonstrated funds were given to the de·fendants and such funds have not been fully returned. The rernittence payments along with the affidavit of Mr. Palacio are sufficient to eliminate all questions of fact in this regard. Further, although the defendants allude to the fact the contract is not valid oh the grounds of usury they make no such substantive arguments in opposition to the motion seeking summary judgement. Therefor.e, based on the foregoing, the motion seeking summary judgernent is granted. So ordered. ENTER: DATED: March 19, 2024 Brooklyn N.Y, Hon. Leon Ruch· llSC 4 4 of 4 [* 4]