W. Coast Bus. Capital v. ISO Int'l

• Decision Date: 28 April 2023
• Docket Number: Index No. 501921/2021
• Citation: 2023 NY Slip Op 31521 (U)
• Parties: WEST COAST BUSINESS CAPITAL, LLC, Plaintiff, v. ISO INTERNATIONAL, LLC D/B/A ISO INTERNATIONAL, MARCOS S AGRAMONT and ANDREW S ALVIS, Defendants.
• Court: New York Supreme Court

1

2023 NY Slip Op 31521(U)

WEST COAST BUSINESS CAPITAL, LLC, Plaintiff, v. ISO INTERNATIONAL, LLC D/B/A ISO INTERNATIONAL, MARCOS S AGRAMONT and ANDREW S ALVIS, Defendants.

Index No. 501921/2021

Supreme Court, Kings County

April 28, 2023

Unpublished Opinion

PRESENT: HON. CARL J. LANDICINO, Justice.

DECISION AND ORDER

Carl J. Landicino, J.S.C Recitation as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered (NYSCEF)

Notice of Motion/Cross Motion and Affidavits (Affirmations)Annexed............................ 31-35, 57-58, 60-67,

Opposing Affidavits (Affirmations)........................................ 45-46 69-70, 73-75,

Reply Affidavits (Affirmations).................................................. 51-53

Memorandum of Law.............................. .....' 36, 47, 50, 59, 71-72, 76-77, 78

After a review of the papers, the Court finds as follows:

PlaintiffWest Coast Business Capital, LLC(hereinafter the "Plaintiff') has commenced this action against DefendantsISO International, LLC d/b/a ISO International ("ISO")Marcos S. Agramont("Agramont") and Andrew S. Alvis("Alvis")(hereinafter referred collectively as the "Defendants").The dispute concerns a contract by and between the Plaintiff and the Defendant ISO (the "Contract" or "Agreement"), personally guaranteed by Defendants Agramont and Alvis, pursuant to which Defendants sold to Plaintiff its future receipts having a value of $104,300.00 for the sum of $70,000.00.Defendant ISO allegedly defaulted in making payments to Plaintiff as required in the Contract.Plaintiff subsequently commenced this action.The Plaintiff raises causes of action for breach of contract, enforcement of guarantee, and attorney's fees.The Plaintiff now moves (motion sequence #3) for an Order pursuant to CPLR 3211(a)(7) and (b), dismissing Defendants' counterclaims and defenses for failure to state a claim or defense.The Plaintiff also moves (motion sequence #4) for an Order pursuant to CPLR 3212 granting it summary judgment on its claims.Plaintiff seeks $86,433.00, plus reasonable attorneys' fees, plus statutory prejudgment interest in the amount of 9% from December 24, 2020.

The Defendants oppose the motions.The Defendants argue that the Plaintiff has failed to meet its prima facie burden and that the motion is premature.The Defendant also argues that the agreement between the parties is unenforceable and constituted a usurious loan.Defendants failed to appear at oral argument.

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues of material fact."Kolivas v. Kirchoff14 A.D.3d 493, 787 N.Y.S.2d 392[2d Dept2005], citingAndre v. Pomeroy,35 N.Y.2d 361,364, 362N.Y.S.2d 1341[1974], The proponent for summary judgment 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.SeeSheppard-Mobley v. King,10 A.D.3d 70, 74, 778 N.Y.S.2d 98[2d Dept2004], citingAlvarez v. Prospect Hospital,68 N.Y.2d 320, 324, 508 N.Y.S.2d 923[1986], Winegrad v. New York Univ. Med. Ctr.,64 N.Y.2d 851, 853, 487 N.Y.S.2d 316[1985]."In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party."Adams v. Bruno,124 A.D.3d 566, 1 N.Y.S.3d 280, 281[2d Dept2015]citingValentin v. Parisio,119 A.D.3d 854, 989 N.Y.S.2d 621[2d Dept2014];Escobar v. Velez,116 A.D.3d 735, 983 N,Y.S.2d 612[2d Dept2014], Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action"Garnham & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493, 538 N.Y.S.2d 837[2d Dept1989], Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers.SeeDemshick v. Cmty. Hous. Mgmt. Corp.,34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168[2d Dept2006];seeMenzel v. Plotnick,202 A.D.2d 558, 610 N.Y.S.2d 50[2d Dept1994].

As an initial matter, the Court finds that the instant motion is not premature.The Defendants do not suggest any further discovery which is solely within the control of the movant is needed to support its prematurity argument, and the mere hope of a deposition to confirm an affidavit is insufficient.SeeBrewster v. Five Towns Health Care Realty Corp.,59 A.D.3d 483, 484, 873 N.Y.S.2d 199[2d Dept2009], quotingConte v.Frelen Assocs., LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258[2d Dept2008], The essential elements of a cause of action to recover damages for breach of contract are (1) the existence of a contract, (2)the plaintiffs performance pursuant to the contract, (3)the defendant's breach of its contractual obligations, and (4) damages resulting from the breach (seeArnell Const. Corp. v. New York City Sch. Const. Auth.,144 A.D.3d 714, 715, 41 N.Y.S.3d 101, 103;Legum v. Russo,133 A.D.3d 638, 639, 20 N.Y.S.3d 124).

The Plaintiff established its prima facie entitlement to summary judgment by showing that: (1)the parties entered into a contract for the assignment of future receivables together with a related Guaranties; (2)Plaintiff performed its obligations under the contract by tendering the purchase price, subject to fees provided for in the agreement, and (3)Defendants breached their contractual obligations under the contract starting on or about August 18, 2022, by failing to tender the receivables as required and as such, defaulted on the Contract.

The Plaintiff, as contended by the Defendants, is not precluded from recovery on the basis that the transaction between the parties was a usurious loan.The Appellate Division, Second Department has been clear in its holding in LG Funding, LLC v. United Senior Properties of Olathe, LLC,181 A.D.3d 664, 122 N.Y.S.3d 309, 312:

The rudimentary element of usury is the existence of a loan or forbearance of money, and where there is no loan, there can be no usury, however unconscionable the contract may be (seeSeidel v. 18 E. 17th St. Owners,79 N.Y.2d 735, 586 N.Y.S.2d 240, 598 N.E.2d 7, Abir v. Malky, Inc.,59 A.D.3d 646, 649, 873 N.Y.S.2d 350).To determine whether a transaction constitutes a usurious loan, it "must be 'considered in its totality and judged by its real character, rather than by the name, color, or form which the parties have seen fit to give it'"(Abir v. Malky, Inc.,59 A.D.3d at 649, 873 N. Y.S.2d 350, quoting Ujueta v. Euro-Quest Corp.,29 A.D.3d 895, 895, 814 N.Y.S.2d 551[internal quotation marks omitted]).The court must examine whether the plaintiff"is absolutely entitled to repayment under all circumstances"(K9 Bytes, Inc. v. Arch Capital Funding, LLC,56 Misc.3d 807, 816, 57 N.Y.S.3d 625[Sup. Ct. Westchester County]).Unless a principal sum advanced is repayable absolutely, the transaction is not a loan (seeRubenstein v. Small,273 App.Div. 102, 75 N.Y.S.2d 483).Usually, courts weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy (seeK9 Bytes, Inc. v. Arch Capital Funding, LLC, 56 Mise.3d at 816-819, 57 N.Y.S.3d 625;see alsoFunding Metrics, LLC v D & V Hospitality, Inc., 62 Mise.3d 966, 91 N.Y.S.3d 678, 970[Sup. Ct. Westchester County]).

The Defendants allege that the reconciliation is unachievable pursuant to the terms of the Contract.However, there is no evidence that the Defendants ever sough reconciliation in support of this allegation.The Agreement contains a reconciliation provision providing for mandatory...