Opinion
Index No.: 612437/2020
03-22-2021
SPARTAN BUSINESS SOLUTIONS, LLC d/b/a SPARTAN CAPITAL, Plaintiff, v. F&M CONSTRUCTION AND DEVELOPMENT CORP and FODIE KOITA a/k/a FODIE MANDA KOITA, Defendants.
NYSCEF DOC. NO. 15
SHORT FORM ORDER
PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice Motion Seq. No.: 01
Motion Date: 12/10/2020
The following papers have been read on this motion:
| Papers Numbered | |
|---|---|
| Order to Show Cause, Affidavit and Exhibits, Affirmation andMemorandum of Law | 1 |
Upon the foregoing papers, it is ordered that the motion is decided as follows:
Plaintiff moves, pursuant to CPLR § 6301, for an order granting a preliminary injunction restraining all funds in any Citibank, Santander or Spring Bank accounts titled to F&M Construction and Development Corp or Fodie Koita a/k/a Fodie Manda Koita, including the Citibank accounts ending in 0860, 0879 and 0887, up to the amount of $40,879.60, or such other amount as the Court deems just, pending the resolution of this action and until further Order of the Court. No opposition was submitted to the motion.
In support of the motion, plaintiff submits the affidavit of Francisco Mercado-Ebanks ("Mercado-Ebanks"), Managing Member of plaintiff corporation. See Plaintiff's Affidavit in Support. Mercado-Ebanks asserts, in pertinent part, that, "[t]his is an action for breach of contract.... Spartan and F&M entered into a written agreement ('Agreement'), dated August 7, 2020,... Under the Agreement, F&M sold Spartan $37,700.00 of its future receipts ('Purchased Amount') for an up front sum of $26,000.00 ('Purchase Price'). Koita guaranteed the obligations of F&M under the Agreement. Spartan paid the Purchase Price, less contractual fees, on August 10, 2020.... Under the Agreement, F&M agreed to pay the Purchased Amount to Spartan by paying 15% of F&M's future receipts. Spartan was granted a security interest in all of F&M's personal property and Filed a UCC-1 financing statement on September 29, 2020.... F&M defaulted under the Agreement by preventing Spartan from collecting the Purchased Amount and by otherwise breaching its warranties and covenants to Spartan under the Agreement. Under the Agreement, Spartan was to make daily ACH debits to F&M's Citibank account to collect the Purchased Amount. Four of Spartan's debits were returned for insufficient funds, as indicated by Spartan's record of F&M's payment history,... After the fourth returned debit on August 28, 2020, Spartan slopped debiting F&M's account because it showed a negative balance in excess of $100,000.00. However, Spartan was aware that F&M was still operational and making money because F&M sent Spartan screenshots of a Santander bank account it was using. F&M made several more payments here and there, which were reconciled in the payment history as a $5,500.00 adjustment on October 6, 2020, but the defendants stopped paying Spartan, did not give Spartan authorization to debit another bank account, and stopped communicating with Spartan. The defendants did not request any reconciliation of the payments made under the Agreement. The defendants have ignored the attempts of Spartan to resolve this matter. The Agreement contains provisions that I am advised authorize the Court to issue a temporary restraining Order restraining the defendants' bank accounts on an application without notice and without the requirement of any bond or undertaking.... If the defendants' bank accounts are not restrained immediately, there will be no assets left to satisfy a final judgment. The final judgment to which Spartan may be entitled will be rendered ineffectual without the interim relief requested herein. Spartan anticipates that it will obtain a final judgment for at least $40,879.60, consisting of $30,659.70 in damages and legal fees of 25% of the amount claimed, which comes to $10,219.90. The calculation of these amounts is set forth in the verified complaint. F&M has bank accounts with Citibank ending in 0860, 0879, and 0887. The defendants also have bank accounts with Santander. The defendants also have bank accounts with Spring Bank." See Plaintiff's Affidavit in Support Exhibits 1 and 2.
As previously indicated, no opposition was submitted to the motion.
"To obtain a preliminary injunction, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits; (2) irreparable injury absent a preliminary injunction; and (3) a balancing of the equities in the movant's favor." Greystone Staffing, Inc. v. Warner, 106 A.D.3d 954, 965 N.Y.S.2d 599 (2d Dept. 2013) quoting Yedlin v. Lieberman, 102 A.D.3d 769, 961 N.Y.S.2d 186 (2d Dept. 2013), See also CPLR § 6301; A\etna Ins. Co. v. Capasso, 75 N.Y.2d 860, 552 N.Y.S.2d 918 (1990).
"The remedy is considered a drastic one which should be used sparingly." Town of Carmel v. Melchner, 105 A.D.3d 82, 962 N.Y.S.2d 205 (2d Dept. 2013). A movant must satisfy each requirement with "clear and convincing evidence." County of Suffolk v. Givens, 106 A.D.3d 943, 967 N.Y.S.2d 387 (2d Dept. 2013). The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court. See Butt v. Malik, 106 A.D.3d 849, 965 N.Y.S.2d 540 (2d Dept. 2013); 1650 Realty Associates, LLC v. Golden Touch Management, Inc., 101 A.D.3d 1016, 956 N.Y.S.2d 178 (2d Dept. 2012).
"While the existence of issue of fact alone will not justify denial of a motion for a preliminary injunction, the motion should not be granted where there are issues that 'subvert the plaintiff's likelihood of success on the merits...to such a degree that it cannot be said that the plaintiff established a clear right to relief.'" Matter of Advanced Digital Sec. Solutions, Inc. v. Samsung Techwin Co., Ltd., 53 A.D.3d 612, 862 N.Y.S.2d 551 (2d Dept. 2008) quoting Milbrandt & Co. v. Griffin, 1 A.D.3d 327, 766 N.Y.S.2d 588 (2d Dept. 2003). See also CPLR § 6312(c); Lombard v. Station Square Inn Apartments Corp., supra.
"To sustain its burden of demonstrating a likelihood of success on the merits, the movant must demonstrate a clear right to relief which is plain from the undisputed facts." Matter of Related Properties, Inc. v. Town Bd. of Town/Village of Harrison, 22 A.D.3d 587, 802 N.Y.S.2d 221 (2d Dept. 2005). See also Abinanti v. Pascale, 41 A.D.3d 395, 837 N.Y.S.2d 740 (2d Dept. 2007).
To sustain their burden of establishing irreparable harm, "the plaintiff is required to show that the irreparable injury to be sustained is more burdensome to him than the harm that would be caused by the defendant through the imposition of the injunction." Lombard v. Station Square Inn Apartments Corp., supra. See also Klein, Wagner & Morris v. Lawrence A. Klein, P.C., 186 A.D.2d 631, 588 N.Y.S.2d 424 (2d Dept. 1992).
Finally, plaintiff must demonstrate that the balancing of equities favors provisional relief. Plaintiff must show that "the absence of a preliminary injunction would cause it greater injury than the imposition of the injunction would inflict upon the defendant." Copart of Connecticut, Inc. v. Long Island Auto Realty, LLC, 42 A.D.3d 420, 839 N.Y.S.2d 791 (2d Dept. 2007); Laro Maintenance Corp. v. Culkin, 255 A.D.2d 560, 681 N.Y.S.2d 79 (2d Dept. 1998).
Based upon the papers and arguments before the Court, the Court finds that plaintiff has met its burden, as described above, in order to obtain the requested preliminary injunction.
Therefore, plaintiff's motion, pursuant to CPLR § 6301, for an order granting a preliminary injunction restraining all funds in any Citibank, Santander or Spring Bank accounts titled to F&M Construction and Development Corp or Fodie Koita a/k/a Fodie Manda Koita, including the Citibank accounts ending in 0860, 0879 and 0887, up to the amount of $40,879.60, or such other amount as the Court deems just, pending the resolution of this action and until further Order of the Court, is hereby GRANTED.
It is further ordered that a Preliminary Conference is scheduled to be held on May 6, 2021, by the filing of a Proposed Preliminary Conference Order. The parties are hereby directed to the court website (http://ww2.nycourts.gov/COURTS/10JD/nassau/cicgeneralforms.shtml) where they will find a fillable PC form with instructions on how to fill it out and when and how to return it. There will be no adjournments, except by formal application pursuant to 22 NYCRR § 125.
This constitutes the Decision and Order of this Court.
ENTER:
/s/ _________
DENISE L. SHER, A.J.S.C. Dated: Mineola, New York
March 22, 2021