Libertas Funding, LLC v. Patmos Prop. Grp.

• Docket Number: Index No. 521299/2022,Motion Seq. 2
• Decision Date: 24 May 2023
• Citation: 2023 NY Slip Op 31825 (U)
• Parties: LIBERTAS FUNDING, LLC, Plaintiff, v. PATMOS PROPERTY GROUP LLC; PATMOS PROPERTY GROUP HOLDINGS LLC; SAVINGS MORTGAGE INC and MICHAEL JOYCE, MARK SULEK., Defendants,
• Court: New York Supreme Court

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2023 NY Slip Op 31825(U)

LIBERTAS FUNDING, LLC, Plaintiff, v. PATMOS PROPERTY GROUP LLC; PATMOS PROPERTY GROUP HOLDINGS LLC; SAVINGS MORTGAGE INC and MICHAEL JOYCE, MARK SULEK., Defendants,

Index No. 521299/2022, Motion Seq. 2

Supreme Court, Kings County

May 24, 2023

Unpublished Opinion

RECEIVED NYSCEF: 05/30/2023

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. The defendants oppose the motion. Papers were submitted by the parties and after reviewing all the arguments this court now makes the following determination.

On September 14, 2020, the plaintiff a merchant cash advance funding provider entered into a contract with defendants Who reside in. Pennsylvania. Pursuant to the agreement the plaintiff purchased $268,000 of defendant's future receivable for $200,000.00. The defendants guaranteed the agreement. The plaintiff asserts the defendants stopped remittances in May 2022 and now owe $147,596,381 This, action was commenced and now the plaintiff seeks summary judgement arguing there can be no questions of fact the defendants owe the amount outstanding and judgement should be granted in their favor. The defendants oppose the motion arguing there are questions of fact which preclude a summary determination at this time.

Conclusions of Law

Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino y, Jamison,. 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept., 2021) .

"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 procedures" (Citibank N.A. v. Cabrera, 130 A.D.3d 861, 14 N.Y.S.3d 420 [2d Dept., 2015]). In this case, the plaintiff submitted, "the affidavit of Ricky Palacio a a customer service representative of the plaintiff, who stated that he reviewed the plaintiff's records in connection with the loan extended in this case.. He further stated, that all the documents he reviewed were maintained in the regular course of business and all such records were made near their occurrence 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 business. Thus, the plaintiff has established the admissibility of the records relied upon since Mr. Palacio had knowledge and familiarity of the plaintiff'' s practices and procedures (see, Cadlerock Joint Venture L.P, v. Trombley, 150 A.D.3d 957, 54 N.Y.S.3d 127 [2d Dept., 2017]). Further, there is ho merit to the argument that Libertas has no standing to even commence this action.- Moreover, there is no merit- to the argument the actual copy of the agreement entered into between the parties has not been presented to the court for review. Therefore the plaintiff established its entitlement to summary judgement.

The defendants argue the agreement in this case was a usurious loan and thus is unenforceable. In this case, there are no questions, of fact the agreement was. a cash -advance agreement and not a usurious and unenforceable loan. The agreement contained a reconciliation provision which conclusively establish the agreement was not usurious (see, K9 bytes, Inc., v. Arch Capital Funding .LLC,. 5.6 MisC3d 807, 57 N.Y.S.2d 625 [Supreme Court Westchester County 2017]}. The defendants argue the reconciliation provision in the contract was merely illusory and thus not a true reconciliation provision, hence the contract...