Opinion
Index No. 507103/2023
09-01-2023
Atipana Credit Opportunity Fund I, LP, Petitioner, v. Empire Restaurants AZ Corp. DBA Matty G's Steakburgers & Spirits and Matthew Gorman, Defendants.
Steven Zakharyayev, New York City (Blaire Fellows of counsel), for Plaintiff.
Unpublished Opinion
Steven Zakharyayev, New York City (Blaire Fellows of counsel), for Plaintiff.
HON. AARON D. MASLOW, Justice of the Supreme Court of the State of New York.
The following numbered papers submitted by Plaintiff were read on this motion:
NYSCEF Doc. No. 7: Notice of Motion
NYSCEF Doc. No. 8: Affirmation of Steven Zakharyayev
NYSCEF Doc. No. 9: Exhibit 1 - Summons and Complaint
NYSCEF Doc. No. 10: Exhibit 2 - Answer
NYSCEF Doc. No. 11: Exhibit 3 - Affirmation of Service
NYSCEF Doc. No. 12: Affidavit of Gerbian King
NYSCEF Doc. No. 13: Exhibit A - "Agreement for the Purchase and Sale of Future Receivables"
NYSCEF Doc. No. 14: Exhibit B - "Remittance History"
NYSCEF Doc. No. 15: Memorandum of Law
NYSCEF Doc. No. 16: Exhibit A - Summons and Complaint
NYSCEF Doc. No. 17: Exhibit B - Affirmation of Service
NYSCEF Doc. No.18: Statement of Material Facts
NYSCEF Doc. No. 19: Request for Judicial Intervention
NYSCEF Doc. No. 20: Amended Notice of Motion
NYSCEF Doc. No. 21: Affirmation of Service
Background
Plaintiff Atipana Credit Opportunity Fund I, LP ("Plaintiff") claims that it entered into a contract ("the Agreement") with Defendant Empire Restaurants AZ Corp. ("Defendant Merchant") whereby it purchased $108,000.00 of its future accounts receivable in exchange for a purchase price of $75,000.00, and that payment of the future account receivables was guaranteed by Defendant Matthew Gorman ("Individual Defendant") (see NYSCEF Doc No. 9, Complaint ¶ 4).
The Agreement provided that Plaintiff was authorized to collect future receivables from Defendant Merchant via ACH electronic debits from a bank account. Said Defendant was not to revoke its authorization for Plaintiff to debit payments. (See id. ¶ 7.) Applicant asserted further that contrary to the Agreement, Defendant "materially breached the terms of the Agreement on February 9, 2022 by changing the designated bank account without Plaintiff's authorization, by placing a stop payment on Plaintiff's debits to the account or by otherwise taking measures to interfere with Plaintiff's ability to collect the Future Receivables" (id. ¶ 8).
In his answer, Individual Defendant denied the allegations and asserted affirmative defenses, including inter alia that "Defendant paid all or part of the debt," and that there should be an accounting providing "Defendant with documentation that proves the amount that Defendant allegedly owes" (NYSCEF Doc No. 10, Answer at 2).
Plaintiff has moved for summary judgment. Neither Defendant interposed a response to the motion.
"[A] a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion (see Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 A.D.3d at 55), for "[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" (Misicki v Caradonna, 12 N.Y.3d 511, 519 [2009]). Indeed "in civil cases, 'inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess'" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 A.D.3d at 54-55, quoting Jerome Prince, Richardson on Evidence § 8-108 at 505 [Farrell 11th ed 1995]; see Matter of Findlay, 253 NY 1, 11 [1930]; Ford v Snook, 205 A.D. 194, 198 [1923], affd 240 NY 624 [1925])." (Bank of NY v Mellon, 171 A.D.3d 197, 202 [2d Dept 2019].)
In the instant case, however, this Court finds it must deny Plaintiff's motion for summary judgment because despite lack of opposition, it has failed to make out a prima facie case in support of its claim. A court must always review a motion for summary judgment to determine if the movant has made out a prima facie case in the first instance. "A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit." (CPLR 3212 [b].) The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 N.Y.3d 733 [2008]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).
This Court was presented in Exhibit B on the motion with what purports to be a "Remittance History," submitted as NYSCEF Doc No. 14. There is nothing at the top of this document to indicate which company's record this is and, even if it is Plaintiff's, to whom this pertains. There are no names - company or individual - on it. There are six columns with headings: "Process Date," "Trans ID," "Cleared Date," "Amount," "Type," and "Status." Plaintiff attempts to authenticate this document as pertaining to Defendant Merchant through an affidavit of Gerbian King, submitted as NYSCEF Doc No. 12. Paragraph 9 of this affidavit states:
9. On or about February 9, 2022, Merchant defaulted under the provisions of the Merchant Agreement by (i) failing to give Plaintiff 24 hours advance notice that there would be insufficient funds in the Account such that four of Plaintiff's attempted debits were rejected for insufficient fund; and (ii) failing to make any remittances thereafter. A copy of the Remittance History as Exhibit B.
This paragraph fails to clarify exactly what Exhibit B represents. It does not specify whose remittance history this is - even remittance of what? In fact, paragraph 9 refers to "four" attempted debits. Assuming arguendo that Exhibit B pertains to Defendant Merchant, this Court sees only two entries denoted as "Returned/NSF." Two does not equal four. That alone demonstrates an inconsistency which goes to the heart of a lack of connection between Plaintiff's claim herein and an alleged default on the part of Defendant Merchant.
"[I]nconsistencies which appear on the face of plaintiff's own papers prohibit the granting of summary judgment, despite the inadequacy of the opposing papers" (Bank of NY v McLean, 116 A.D.2d 546, 547 [2d Dept 1986], citing to Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). In numerous additional instances involving different causes of action, it has been held that where a party's papers submitted in support of a motion for summary judgment conflict, there is a failure to meet the prima facie burden (e.g. Black v County of Dutchess, 87 A.D.3d 1097 [2d Dept 2011]; Cracciolo v Omerza, 87 A.D.3d 674 [2d Dept 2011]; Dettori v Molzon, 306 A.D.2d 308 [2d Dept 2003]; Saaverda v East Fordham Rd. Real Estate Corp., 233 A.D.2d 125 [1st Dept 1996]; Neuman v Otto, 114 A.D.2d 791 [1st Dept 1985]; Shur v Unitrin Advantage Ins. Co., 56 Misc.3d 136 [A], 2017 NY Slip Op 51011[U] [App Term, 9th & 10th Dists 2017]; Hillcrest Radiology Assoc. v State Farm Mut. Auto Ins. Co., 28 Misc.3d 138 [A], 2010 NY Slip Op 51467[U] [App Term, 2d, 11th & 13th Dists 2010]).
Moreover, Exhibit B, as bare as it is of any identifying information, is obviously hearsay of something, perhaps transactions, perhaps pertaining to somebody unknown. It is elemental that "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR 4518 [a]). This is known as the business records exception to the hearsay rule.
"Made in the regular course of any business" (id.) means "that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record" (Bank of NY, 171 A.D.3d at 205, citing People v Kennedy, 68 N.Y.3d 569, 579-580 [1986]). "In addition to these statutory requirements, the Court of Appeals has held that '[u]nless some other hearsay exception is available, admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event or condition and he [or she] is under a business duty to report it to the entrant'" (Bank of NY, 171 A.D.3d at 205, citing Matter of Leon RR, 48 N.Y.2d 117, 123 [1979]).
Nowhere in Gerbian King's affidavit is there any statement that it was Plaintiff's regular course of business to make Exhibit B's document, or any other submitted document. Nothing describes "established procedures for the routine, habitual, systematic making of such a record" (Bank of NY, 171 A.D.3d at 205). Paragraph 2 of such affidavit refers to business records annexed to Mr. King's affidavit:
2. I have reviewed Plaintiff's books and records as they pertain to this file and am fully familiar with such. The business records annexed to this affidavit are made in the regular course of business and are maintained under my supervision and control. The records were made in the regular course of Plaintiff's business at or around the time of the transactions reflected therein (or within a reasonable time thereafter). The information reflected in the records was given to the recorder by someone with personal knowledge and a business duty to transmit the information accurately....
This paragraph never states that it was Plaintiff's regular course of business to make any records. Stating that a record was made in the regular course of business (twice) does not equate to a company having a regular course of business for maintaining records - an established procedure for the routine, habitual, systematic making of records. The doubt of there being any such regular course is heightened by the mysterious references to a "someone" giving a "recorder" some "information." Neither the "someone," the "recorder," nor the "information" is identified. The question remains: What does Exhibit B reflect?
Even in the absence of opposition, it would be unconscionable for this Court to grant summary judgment to a moving plaintiff where there is a complete absence of the most basic prima facie case of entitlement to judgment as a matter of law. Here, there is no tender of "sufficient evidence in admissible form demonstrating the absence of material issues of fact" (CPLR 3212 [b]).
In Rosenblatt v St. George Health & Racquetball Assoc., LLC (119 A.D.3d 45, 55 [2d Dept 2014], the court quoted with approval a noted evidence treatise's statement that "inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess." This Court ascribes no probative value whatsoever to the unauthenticated, unidentifiable document submitted as Exhibit B which is inconsistent with the sworn statement of the affiant Mr. King, especially in light of Plaintiff's submission of an answer which alleged that all or part of the debt was paid and that the amount claimed owed was disputed.
In light of this, it is hereby ORDERED that the within motion of Plaintiff for summary judgment is DENIED.