Opinion
Index No. 160582/2022
06-14-2023
ByzFunder NY LLC, Plaintiff, v. A Grade Above LLC and RAY K WINSTEAD, Defendants.
Berkovitch & Bouskila, PLLC, New York, NY (Ariel Bouskila of counsel), for plaintiff. No appearance for defendants.
Unpublished Opinion
Berkovitch & Bouskila, PLLC, New York, NY (Ariel Bouskila of counsel), for plaintiff.
No appearance for defendants.
Gerald Lebovits, J.
In this breach-of-contract action, plaintiff ByzFunder NY LLC moves for summary judgment under CPLR 3212 against defendant-merchant A Grade Above LLC/Winstead Group and defendant-guarantor Ray K. Winstead III. Plaintiff's motion is granted without opposition.
On July 7, 2022, plaintiff and merchant entered into a receivables-purchase agreement under which merchant sold $69,500.00 of its receivables to plaintiff for $50,000. (NYSCEF No. 7 at ¶ 6.) The agreement provided that merchant would deposit all of its sales proceeds and receivables into one designated deposit account, from which plaintiff would electronically debit 8% of the total weekly proceeds/receivables. (Id. at ¶ 7.) Plaintiff represents that after it paid merchant, merchant partially performed its obligations under the agreement from July 7, 2022, until December 7, 2022. (Id. at 9-10.) Plaintiff further represents that on December 7, merchant denied plaintiff access to its account; and that plaintiff's attempts to access merchant's sales proceeds resulted in an ACH debit-rejection notice. (Id. at 12.)
Plaintiff brought this action on December 12, 2022, seeking payment of the balance of unremitted receivables, plus interest and costs, from merchant and guarantor. (NYSCEF No. 12 at ¶¶ 11, 20, 24.) On January 17, 2023, plaintiff brought this motion for summary judgment against defendants. (NYSCEF No. 6 [notice of motion].)
CPLR 3212 (a) requires that issue be joined before a party may move for summary judgment. This "requirement is strictly adhered to." (City of Rochester v Chiarella, 65 N.Y.2d 92, 101 [1985].) Defendants have neither appeared nor filed an answer. An exhibit submitted with plaintiff's motion, however, includes a copy of an answer, dated January 8, 2023. (See NYSCEF No. 12 at 10 [defendants' answer].) Plaintiff's supporting papers state that "[o]n or about January 8, 2023, Defendants filed an answer to Plaintiff's Summons and Verified Complaint." (NYSCEF No. 7 at ¶ 14.)
The question is whether, for summary-judgment purposes, issue can be considered to have been joined when the defendant has served-but not filed-an answer. In considering this question, this court has found only one case on point. In Professional Orthopedic & Sports P.T.P.C. v Pittore (2012 NY Slip Op 51398[U], at *2 [Poughkeepsie City Ct 2012]), the court considered a plaintiff's summary-judgment motion against two defendants: One (Mary Pittore) who had not served or filed an answer, and another (Anthony Pittore) who had served his answer on plaintiff but failed to file it with the court. The court denied plaintiff's motion as to Ms. Pittore, concluding that because she did not serve or file an answer, issue had not been joined, making plaintiff's CPLR 3212 motion premature. (Id. at *2-3.) But with respect to Mr. Pittore, the court proceeded immediately to the merits of the motion and only mentioned Mr. Pittore's lack of filing of an answer in a footnote. (Id. at *2 n ["Defendant, Anthony Pittore never filed his answer with the Court, but said answer was filed by the plaintiff as part of its motion for summary judgment."].)
As in Professional Orthopedic & Sports, this court did not receive defendants' answer from defendants, but rather from plaintiff's papers submitted in support of its summary-judgment motion. This court agrees with the City Court's conclusion in that case that plaintiff's summary-judgment motion is properly before the court. The requirement that courts strictly adhere to CPLR 3212 (a) is to ensure that a court is shown "precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are." (Matter of Rine v Higgins, 244 A.D.2d 963, 964 [4th Dept 1997].) Because this court received defendants' answer-although not by the usual means-this court knows defendants' position with respect to the allegations of the complaint and defendants' asserted defenses. The court therefore may proceed to the merits of plaintiff's motion.
On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law through submission of evidence in admissible form. (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980].) The elements of a breach-of-contract cause of action include "the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages." (Markov v Katt, 176 A.D.3d 401, 401-402 [1st Dept 2019] [internal quotation marks omitted].)
Plaintiff seeks judgment in the amount of $54,457.07, which includes the balance of unremitted receivables in the amount of $51,907.07, plus $2,550.00 in default and NSF fees. (See NYSCEF No. 10 at 7 [Appendix A - The Fee Structure].) To support its claim for this amount, plaintiff has submitted an affidavit from its manager (NYSCEF No. 7), copies of the merchant agreement and guaranty (NYSCEF No. 10 [merchant agreement and guaranty]), proof of its $50,000 payment (NYSCEF No. 13 [bank wire transfer]), and proof of defendant-merchant's unremitted sales proceeds (NYSCEF No. 11 [transaction history]). Plaintiff has satisfied its initial prima facie burden.
Defendants have not proffered any opposition to plaintiff's motion. They have therefore failed to rise a triable issue of fact that would defeat summary judgment. Plaintiff's motion is granted.
Accordingly, it is
ORDERED that plaintiff's motion for summary judgment under CPLR 3212 is granted, and plaintiff is awarded a judgment against defendants, jointly and severally, for $54,457.07, with interest running at the statutory rate from December 7, 2022, plus costs and disbursements to be taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.