Opinion
Index No. 521023/2023 Motion Seq. 1
02-13-2024
CFG MERCHANT SOLUTIONS., LLC, Plaintiff, v. EAGLE MIRZA EYE TRUCK LINES LLC and DORIC, MUZAFER DORIC, Defendants,
Unpublished Opinion
DECISION AND ORDER
HON, LEON ROCHELSMAN, JUDGE
The plaintiff has moved seeking summary judgement pursuant to CPLR §3212 arguing there are no questions of fact the defendants owe the money sought. The defendants oppose the motion. Papers were submitted by the parties and after reviewing all the arguments this court now makes the following determination.
On May 4, 2023, the plaintiff a merchant cash advance funding provider entered into a contract with defendants who reside in Michigan. Pursuant to the agreement the plaintiff purchased- $292,900 of defendant's future receivable for $202,000.00. The defendants guaranteed the agreement. The plaintiff asserts the defendants changed banks in July 2023 and stopped remittances now owe $165,793.35. This action was commenced and now the plaintiff seeks summary judgement arguing there can be no questions of fact the defendants owe the amount outstanding and judgement should be granted in their favor. The defendants oppose the motion arguing there are questions of fact which preclude a summary determination at this time.
Conclusions of Law
Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept., 2021).
The business record exception to the hearsay rule is codified in CPLR §4518. Essentially,: there are three foundational requirements which must be satisfied before any part of a business record may be admitted. Thus, it must be demonstrated that: the record was made in the regular course of business, that it was the regular course of business to make such a record and that the record was made close in time to the act or transaction or occurrence (CPLR 4518(a), People v. Kennedy, 68 N.Y.2d 569, 510 N.Y.S.2d 853 [1986]). Thus:, the proponent must establish the records contain routine and regularly conducted business activity that is necessary for fhe performance of the business's functions, there are procedures for the habitual and systematic making of .such, records and that the records are made close in time to the; event to insure accuracy (Kennedy, supra).
Moreover, in addition to the above foundational requirements' "a proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures" (Citibank N.A. v. Cabrera., 130 A.D.3d 861, 14 N.Y.S.3d 420 [2d Dept., 2015]). Further, the actual business records substantiating the default must be submitted (U.S, Bank National Association V, Kahn Property Owner LLC, 206 A.D.3d 850, 168 N.Y.S.3d 349 [2d Dept., 2022]). Thus, where a party introduces evidence of the existence of outstanding balances, personal guarantees and the defendant's failure to make payments according to the- terms of the instruments then summary judgement is proper (see, JPMorgan Chase Bank N.A., v, Bauer, 92 A.D.3d 641, 938 N.Y.S.2d 190 [2d Dept., 2012]). In this case, the plaintiff submitted the affidavit of James- .Elder a manager of collections' of the plaintiff who stated that, he reviewed the- plaintiff's records in connection with the loan extended in this case.. He further stated that all the. documents he- reviewed were maintained in the regular course of business and all such records were made near their occurrence. Mr. Elder stated that "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" (see, Affidavit of James Elder, ¶2 [NYSCEF Doc. No. 12]) . Thus, the plaintiff has established the admissibility of the- records relied upon since Mr. Elder had knowledge of the plaintiff's- practices and procedures (see, Cadlerock Joint Venture L.P, v. Trombley, 150 A.D.3d 957, 54 N.Y.S.3d 127 [2d Dept., 2017]). In Capybara Capital LLC v. Zilco N.W. LLC, 78 Misc.3d 1238(A), 188 N.Y.S.3d 427 [Supreme Court Kings County 2023] the court held similar language insufficient to establish the admission of any records demonstrating non-payment. However, in American Funding Services, v. T.N. Eldridge Developments LLC, 2023 WL 8357446 [Supreme Court New York County 2023] the court declined to adopt that conclusion and held that an affidavit from a manager of the plaintiff was sufficient. In that case, the court concluded the manager "reviewed the records of the Plaintiff., and he has knowledge about how the records are kept and maintained. He also indicated that the documents he is relying on were made in the ordinary course of business" (id). Those assertions were sufficient to consider the records properly admitted as business records.
Likewise, in this case Mr. Elder has submitted an affidavit which avers he is fully familiar with the records in this case, that the records are kept in the ordinary course of business and that the records were made near the time of the occurrence. Thus, the plaintiff has adequately presented sufficient evidence the defendant has failed to make the required payments. Thus, there are no other grounds upon which the defendants oppose the motion seeking summary judgement.
Therefore, based on the foregoing, the motion seeking summary judgement is granted.
So ordered.