Opinion
Index No. 535108/23 Mot. Seq. No. 2
11-07-2024
Silverline Services, Inc., Plaintiff, v. Padgett Forestry Products, LLC, dba Padgett Forestry Products; Padgett Forestry Product, LLC, and Franklin Lewis Padgett, aka Franklin Padgett, Defendants.
Unpublished Opinion
PRESENT: HON. CAROLYNE. WADE, Justice.
DECISION AND ORDER
HON. CAROLYN E. WADE, JUSTICE OF THE SUPREME COURT.
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion and Affidavits (Affirmations) Annexed ____________ 29-36
Opposing Affidavits (Affirmations) ____________ 38-47
Affidavits/Affirmations in Reply ____________ 48
In this action to recover damages for breach of contract, plaintiff Silverline Services, Inc, (the "plaintiff") moves (in motion sequence 2) for an order, pursuant to CPLR §3212, granting it summary judgment against defendants Padgett Forestry Products, LLC, doing' business as Padgett Forestry Products, and Padgett Forestry Product, LLC (collectively, the "obligor defendants"), as well as against defendant Franklin Lewis Padgett, also known as Franklin Padgett (the "guarantor defendant" and collectively with the obligor defendants," the "defendants"). The defendants oppose the plaintiff's motion. The Court heard oral argument on the plaintiff's motion on August 7, 2024 and reserved decision. For the reasons stated below, the plaintiff s motion is denied.
Pursuant to the Merchant and Security Agreement, dated as of October 10, 2023 (the "MSA"), the plaintiff allegedly advanced to the obligor defendants the sum of $43,850.70, with the payback amount of $67,924.73. The defendant guarantor executed and delivered its guarantee of the obligor defendants' covenants under the MSA.
According to the plaintiff (but disputed by the defendants), the obligor defendants paid plaintiff a total of $31,475, with the balance of $36,449.73 due and owing. Further, according to plaintiff (but likewise disputed by the defendants), die obligor defendants breached various payment and non-payment covenants under the MSA. Plaintiff contends that the obligor defendants (and concomitantly the guarantor defendant) owe it the aforementioned balance of $36,449.73, plus the "Blocked ACH" fee of $2,500.
Plaintiffs motion is supported by (among other documents) the affidavit of its Director of Risk Management, Shmuel Brummel, dated January 16, 2024 (the "Brummel affidavit") (NYSCEF Doc No. 30), and an unsigned, unaffirmed three-page Merchant Statement, dated November 24, 2023, listing various payments from October 11, 2023, to November 14, 2023, and several so-called "Returned" payments from November 15,2023 to November 20, 2023 (the "merchant statement") (NYSCEF Doc No. 34).
In opposition to the plaintiff's motion, the defendants contend (among other tilings) that the Brunner affidavit "failed to lay a foundation for records purportedly reflecting the defendant [obligors'] payment history and default." Defendants' Memorandum of Law, dated July 31, 2024, at 6 (NYSCEF Doc No. 46).
It is well settled that summary judgment may be granted only when no triable issue' of fact exists (see Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). The burden is upon the moving party to make a prima facie sho wing that they are entitled to summary judgment as a matter of law by presenting evidence in admissible-form demonstrating the absence of material facts (see Guiffirda v Citibank, 100 N.Y.2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion regardless of the adequacy of the opposing papers (see Ayotte v Gervasio, 81 N.Y.2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (see Alvarez, 68 N.Y.2d at 324).
Here, the Court finds that the plaintiff has failed to establish, prima facie, its entitlement to judgment as a matter of law, irrespective of the sufficiency of the defendants' opposition papers. The plaintiff s motion is based on evidence that is not in admissible form (see Federal Natl. Mtge, Assn. v Marlin, 168 A.D.3d 679, 681 [2d Dept 2019]), As the defendants correctly point out, the Brummel affidavit fails to lay a foundation for the admission of the merchant statement (see CPLR 4518 [a]; HSBC Bank USA, N.A. v Berdoe, 190 A.D.3d 840, 842 [2d Dept 2021]; Deutsche Bank Natl, Tr. Co. v McGann, 183 A.D.3d 700,702 [2d Dept 2020]; U.S. Bank N. A. v Kochar, 176 A.D.3d 1010,1012 [2d Dept 2019]; Fulton Holding Group, LLC v Lindoff, 165 A.D.3d 1049, 1051 [2d Dept 2018]; see also RDM Capital Funding, LLC v Shoegod 313 LLC, 83 Misc.3d 1272[A], 2024 NY Slip Op 51077[U] [Sup Ct, Kings County 2024]; Capybara Capital LLC v Zilco N.W. LLC, 78 Misc.3d 123 8[A], 2023 NY Slip Op 50476[U] [Sup Ct, Kings County 2023]). The Court considered the plaintiff's remaining contentions and found them either unavailing or moot. Accordingly, it is
ORDERED that the plaintiffs motion (motion sequence 2) for summary judgment is denied in its entirety; and it is further
ORDERED that the defendants' counsel is directed to electronically serve a copy of this Decision and Order with notice of entry on the plaintiffs counsel and to electronically file an affidavit of service thereof with the Kings County Clerk.
The foregoing constitutes the Decision and Order of the Court.