Reynaga Trucking Inc. v. Funding Metrics, LLC

• Decision Date: 01 September 2020
• Docket Number: Index 52831/2019
• Citation: 2020 NY Slip Op 34675 (U)
• Parties: REYNAGA TRUCKING, INC. D/b/a BOX IN MOTION Plaintiff, v. FUNDING METRICS, LLC d/b/a LENDINI and ERIC SOLOMON, Defendants. Sequence Nos. 2, 3
• Court: New York Supreme Court

1

2020 NY Slip Op 34675(U)

REYNAGA TRUCKING, INC. D/b/a BOX IN MOTION Plaintiff, v. FUNDING METRICS, LLC d/b/a LENDINI and ERIC SOLOMON, Defendants.

Sequence Nos. 2, 3

Index No. 52831/2019

Supreme Court, Westchester County

September 1, 2020

Unpublished Opinion

DECISION & ORDER

HON CHARLES D. WOOD, JUSTICE

New York State Courts Electronic Filing ("NYSCEF") Document Numbers 48-132, were read in connection with plaintiffs motion for summary judgment (Seq 2), and defendants' cross-motion for summary judgment (Seq 3).

Based upon the foregoing, the motions are decided as follows^[1]:

On or about March 5, 2018, L&E Trucking, LLC ("L&E Trucking") and Edgar Reynaga entered into a written Merchant Agreement with defendant Funding Metrics, LLC d/b/a Lendini ("Funding Metrics"), whereby L&E Trucking agreed to sell its future receivables to Funding Metrics, and Funding Metrics agreed to purchase said receivables from L&E Trucking ("Merchant Agreement"). Edgar Reynaga was the guarantor of the Merchant Agreement. On or about March 5 2018, L&E Trucking and Edgar Reynaga, individually executed an Affidavit of Confession of Judgment pursuant to the Merchant Agreement.

Allegedly, on or about April 23, 2018, Edgar Reynaga contacted Funding Metrics and informed Funding Metrics that he had changed the name of the company from L&E Trucking, LLC to Reynaga Trucking, Inc.

On or about April 25, 2018, Edgar Reynaga sent Funding Metrics an e-mail with an attachment titled, Bank Authorization, which was signed by Edgar Reynaga on behalf of L&E Trucking and Reynaga Trucking, and pursuant to the Merchant Agreement specifically authorized and directed Funding Metrics to take automated clearing house payments from the Chase Bank Account ("Bank Authorization").

"BANK AUTHORIZATION

I EDGAR REYNAGA am the owner of L&E Trucking, LLC located at 16325 Sugargrove Drive Whittier CA 90604. On or about March 5, 2018 I entered into a Purchase Agreement with Funding Metrics, LLC dba Lendini. Payments were to be tendered via ACH debit from my business checking account ending in 6389 located at U.S. Bank. Due to unforeseen circumstances payments can no longer be debited from this account.

I EDGAR REYNAGA am also the owner of Reynaga Trucking, Inc. located at 16325 Sugargrove Drive Whittier, CA 90604. This business checking account ending in 5313 is located at Chase Bank.

I hereby authorized Funding Metrics, LLC to ACH debit my Reynaga Trucking, Inc. account in the amount of$162550, each and every day business day, Monday through Friday until the balance owed to Funding Metrics, LLC by L&E Trucking, LLC has been paid in full.

I hereby certify that I am authorized to execute this document on behalf of L&E Trucking, LLC and on behalf of Reynaga Trucking, Inc." (NYSCEF Doc No. 86)

On October 23, 2018, a Judgment by Confession in Nassau County Supreme Court was issued in the total amount of $14, 046.61, under Index Number 614308/2018, in favor of Funding Metric against defendants L&E Trucking, LLC and Edgar Reynaga (NYSCEF Doc No. 51).

On October 25, 2018, an Information Subpoena with Restraining Notice was served on Chase Bank as against plaintiffs, as Judgment Debtors, resulting in a bank hold on November 2, 2018.

On or about November 6, 2018, Edgar Reynaga, on behalf of L&E Trucking and himself individually entered into the Payment Agreement with Funding Metrics. Pursuant to the Payment Agreement, Edgar Reynaga signed the Authorization Agreement for Automated Clearinghouse Payments from the Chase Bank Account - Payment Agreement, L&E Trucking and Edgar Reynaga made payments totaling $3, 000 to Funding Metrics before defaulting on the Payment Agreement. An outstanding balance in the amount of $9, 000 is still due and owing on the Payment Agreement.

It is well settled that "a proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp. 68 N.Y.2d 320, 324 [1986]; see Orange County-Poughkeepsie Ltd. Partnership v Bonte 37 A.D.3d 684, 686-687 [2d Dept 2007]; see also Rea v Gallagher 31 A.D.3d 731 [2d Dept 2007]). Once the movant has met this threshold burden, the opposing party must present the existence of triable issues of fact (see Zuckerman v New York 49 N.Y.2d 557, 562 [1980]; see also Khan v Nelson. 68 A.D.3d 1062 [2d Dept 2009]). Conclusory, unsubstantiated assertions will not suffice to defeat a motion for summary judgment (Barclays Bank of New York, N.A. v Sokol, 128 A.D.2d 492 [2d Dept 1987]). A party opposing a motion for summary judgment may do so on the basis of deposition testimony as well as other admissible forms of evidence, including an expert's affidavit, and eyewitness testimony (Marconi v Reilly 254 A.D.2d 463 [2dDept 1998]). In deciding a motion for summary judgment, the court is required to view the evidence presented "in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion" (Yelder v Walters 64 A.D.3d 762, 767 [2d Dept 2009]; see Nicklas v Tedlen Realty Corp. 305 A.D.2d 385, 386 [2d Dept 2003]). The court must accept as true the evidence presented by the nonmoving party and must deny the motion if there is "even arguably any doubt as to the existence of a triable issue" (Kolivas v Kirchoff 14 A.D.3d 493 [2d Dept 2005]); Baker v Briarcliff School Dist. 205 A.D.2d 652, 661-662 [2d Dept 19?4]). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to existence of a triable issue (Alvarez v Prospect Hospital 68 N.Y.2d 320, 324 [1986]).

After a judgment is entered, a judgment creditor may pursue payment to satisfy the judgment from a third-party garnishee "in possession or custody of money or other personal property in which the judgment debtor has an interest." (see CPLR 5225[b]; Bingham v Zolt, 231 A.D.2d 479 [1st Dept 1996]). The restraining notice serves as an injunction prohibiting the transfer of the judgment debtor's property (Distressed Holdings. LLC v Ehrler, 113 A.D.3d 111, 116 [2d Dept 2013]).

CPLR 5222(b) provides in relevant part, that a third-person in possession of the judgment debtor's property "is forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any such property, or pay over or otherwise dispose of any such debt, to any person other than the sheriff, except upon direction of the sheriff or pursuant to an order of the Court, until the expiration of one year after the notice is served upon him, or until the judgment is satisfied or vacated, whichever event first occurs."

In support of its motion, plaintiff Reynaga Trucking contends that Funding Metric did not have the legal authority to restrain the Chase Bank Account in execution on the Judgment in that L&E Trucking did not have an interest in the Chase Bank Account. The court disagrees. According to the deposition testimony of Edgar Reynaga, L&E Trucking and Reynaga Trucking are both owned by Edgar Reynaga(Reynaga Deposition,...