Prosperum Capital Partners LLC v. Piola Prop. Mgt. LLC

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Prosperum Capital Partners LLC v Piola Prop. Mgt. LLC 2024 NY Slip Op 31761(U) May 20, 2024 Supreme Court, Kings County Docket Number: Index No. 512250/2023 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 05/21/2024 10:12 AM INDEX NO. 512250/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 05/21/2024

At an IAS Tenn; Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Comthotise, at Civic Center, Brooklyn, New York, onthe 20th day of May 2024

HONORABLE FRANCOIS A. RIVERA --------· --- ·. ------· ----·. ------·. ---------·. --------- ·-----------X PROSPERUM CAPITAL PARTNERS LLC DECISION & ORDER D/B/A ARSENALFUNDING,

Plaintiff, Index No.: 512250/2023

- against-

PIOLAPROPERTY MANAGEMENT LLC D/B/A PIOLA PROPERTY MANAGEMENTand CHRISTIAN MANTUANO Defendants. -.-------. --------. ---- .--..----. -------. -------- .- .----- .----------X Recitation inaccordance with CPLR 2219 (a) of the papers considered on notice ofmotion filed on August 14, 2023, under motion sequence number one, by Prosperum Capital Partners LLC D/B/A Arsenal Funding (hereinafter the plaintiff) for an order pursuant to CPLR3212 awarding summary judgment in favor ofplaintiff as againstPiola Property Manage111ent LLC D/B/A Pio la Property Management (hereinafter the LLC defendant) and Christian Mantuano· (hereinafter the guarantor) (collec:tively the. defendants) as well as the costs and disbursements of this action. The motion is oppos·ed .

..:Notice ofrnotion "'Affirmation in support .,Affidavit in support Exhibits A-E ..:Memorandum of law in support "'.Statement of material facts -Affirmation in opposition Exhibits A-C

BACKGROUND •· On April 25,2023, plaintiff commenced the instant action by filing a summons

anc:l verified complaint with the Kings Com'.lty Clerk, s office (KCCO ). On June 2, 2023,

FILED: KINGS COUNTY CLERK 05/21/2024 10:12 AM INDEX NO. 512250/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 05/21/2024

Footnotes

[1] of 5 [* 1] the defendants interposed and filed an answer with counterclaims with the KCCO. On June 23, 2023, the plaintiff interposed and fileda reply to the defendants; counterclaims with· the KCCO. The vetified complaint alleges thirty-two allegations. of fact in support of three denominated causes of action. The first is for breach of contract, the second is for breach of a guarantee agreement; and the third is for attorney's fees based onan alleged breach of the agreement. The verified coin plaint alleges the following salient facts. Pursuant to a receivable purchase agreement (hereinafter the agreement) and personal guarantee dated February 2, 2023, the plaintiffpurchased from the LLC defendant its future accounts receivable having a face value.of$44,700.00. On or about February 2, 2023, the LLC defendant, in consideration of the sum of $30,000.00, sold, assigned, and transferred to plaintiff seventeen (10%) percent ofits future sales proceeds, up to an aggregate amount of$44, 700.00. By the agreement, Christian Mantuano executed apersonal guarantee iftheLLC defendant defaulted on the agreement. Pursuant to the aforesaid agreement, the LLC defendant agreed to have one bank account approved by plaintiff (hereinafter "Bank Accol!llt 11 ) from which the LLC defendantauthorizedplaintiff to debit 10% of its daily revenue until the purchased amount.ofree:eivables was paid in full. On February 23, 2023, the LLC defendant defaulted tinder tlleagree_t'nent.by failing to remit its .sales proceeds to the plaihti ff and o therWise breached the agreement by intentionally impeding and preventingplaintiff from making the agreed uponACH

[2] of 5 [* 2] withdrawals from the Bank Account while conducting regular business. operations. In total, the LLC defendant remitted theamountof$9,834.00 in accordance with the agreement, leaving a balance of$ 34,866.00 remaining due and owing. The plaintiff claims that there is now d_ue and payable to plaintiff, by the defendants, the principal balance sum of$ $47,961.00, together with attorney's fees of $R,716 .50, resulting_ in a sum of $56,67750. LAW AND APPLICATION It is well established that summary judgment may be granted only when no triable issue offact exists (Alvarez vProspect Hospital 1 68 NY2d 320,324 [1986]). The burden is upon the moving patty toma:ke a prima facie showing that he or sheis entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of 1rtaterial facts (Giziffi:ida v Citibank Corp., l 00 NY2d 72,

[81] [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 063 [ 19 93]) ~ If prim a: facie showing has been made, the burdei1 ·shifts to the opposingparty to produce evidentiary proof sufficientto establish the existence of material issues of fact{Alvarez, 68 NY2d at324). Pursuant to CPLR 3'.21'.2 (b), a court will grant.a motion for summary judgment upon a determination that the movants papers justify holding, as a matter of law, that there is no defenseto the cause of action or that the' ca:i:1se of action or defense has no merit. Furthennore, al 1 of the evidence. must be viewed in the. Iigh t. most.favorable to. the 3 of 5 ___________ [* 3] .................. ·-·······-··" ............................ ·-······--·.. ··· .. ··-· ................................ . , opponent of the motion (Marine Midland Bank vDino & Artie1s Automatic Transmission Co., 168 AD2d 610,610 [2d Dept 1990]). The essential elements ofa cause of action to recover damages for breach of contract are ''the existence ofa contract, the plaintiff's perfonnance 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, 807 [2d Dept 2023 ]). In the case at bar; the only swom testimony submitted by the plaintiff in support of the motion was an affirmation of Jeffrey Patella, its counsel (hereinafter Parella), and an affidavit ofMarlen Kruzhkov, its managing member (hereinafter Kruzhkov}. Parella's affinnation demonstratedno personal lmowledge. of any ofthe transactional facts alleged in the complaint An attorney's affirmation that is not based upon personal knowledge is ofno probative or eviderttiary significance (Nerayoffv Khorshad, 168 ADJd 866, 866-

[867] [2d Dept 2019], citing Warrington v Ryder Truck Rental, liw., 35 AD3d 455,456 [2d Dept2006]), Parella's affirmation states that the facts in support of the motion are contained in the affidavit ofKruzhkov. The plaintiffs evidentiary submission did not demonstrate thatit paid theLLC defendant the agreed upon purchase price for its future receivables. Kruzhovavered that annexed as exhibit B to the motion was proofof the plaintiffs funding of the purchase price. The arniexed docunwnt, however, contained dnly two Jines and part ofthose lines were redacted. The document contained a typed entry stating the word ''checking" and the amount of $0.00 and to the right of that amount Was the airtount of $28/200.00 and ·nothin15 else,. The document, however, was neither .explained; nor authenticated~ nor was 4 of 5 [* 4] it probative ofanything. The plaintiff provided no admissible evidence demonstrating that it performed its part of the agreement by paying the defendants the agreed-upon purchase price. Consequently, the plainti ffdid not meet its burden of demonstrating as a matter oflaw that the defendants breached the; agreement. Inasmuch as the plaintiff did not make a prima facie showing that the LLC defendant breached the agreement, the obligation of the guarantor was not triggered. As a result, the plaintiff also failed to show thatthe guarantor breached the agreement. Inasmuch~ as the plaintiff failed to demonstrate that the LLC defendant ot Christian Mantuano breached the agreement, the third cause of action for attorney's fees based on a breach ofthe agreement is also unsupported. The; motion is therefore denied without regatd to the sufficiency ot lc1ck of opposing papers (see Cugini v System Lbr. Co., 111 AD2d 114, 115 [1st Dept 1985]). CONCLUSION The branch of the motion by Prosperum Capital Partner.<:, LLC D/B/A Arsenal Funding or an order pursuant to CPLR 3212 granting surnmary judgment in its favor on its causes of action for breach of contract, breach of a guarantee agreetnent, and attorney'sfees as against against PiolaProperty Management LLC D/B/APiola.Property . . Management and Christjan Mantuano is denied. The foregoing constitutes the deci$ion and order of this Court. ENTER; ~~C~ ;~ - ~ J.S.Ci HON. FRANCOIS A. RiVERA 5 of 5 [* 5]