Preview
FILED: KINGS COUNTY CLERK 11/03/2022 05:34 PM INDEX NO. 523142/2022
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 11/03/2022
EXHIBIT 1
DECISION
AND ORDER
West Wolf Capital, LLC v.
The Marlipa Corporation
FILED: KINGS COUNTY CLERK 11/03/2022 05:34 PM INDEX NO. 500900/2022
523142/2022
NYSCEF DOC. NO. 25
24 RECEIVED NYSCEF: 07/13/2022
11/03/2022
At anl.A.S. ComnrcrcialPart I2 of rhe Suprcme
Court ofthe State ofNcw York, held in and forthe
CountyofKings, at the Courthouse, localed at 360
Adams Strcct, Borough ofBrooklyn, City and State
ofNew York on the I 3th day ofJuly2022.
PRESENT:
Honorable Reginald A. Boddie
Justice, Supreme Court
WEST WOLF CAPITAL, LLC,
Index No. 50090012022
Plaintifl. Cal. No. 19 MS I
-agarnst- DECISION ANDORDER
THE MARLIPA CORPORATION/ PNR FOR FORTE
LLC D tsI A AMERICAN IMPORT AUTO GROUP,
PAUL RICHARD MESSERSMITH,
Defendants.
---------------------------x
Recitation, as required by cPLR 2219 (a), ofthepapers considered in the review ofthis motion:
Papers Numbered
MSI Docs. # 1-24
Upon the foregoing cited papcrs, the decision and order on plaintiff's motion for
summary judgment, pursuant to CPLR 3212, is as follows:
On November 12,2021, plaintiff and defendant-seller The Marlipa Corporation (Marlipa)
cntered into an agreemcnt wherein plaintiff purchascd $335,760.00 of Marlipa's future accounts
receivable in exchange for $240,000. Defendant Paul Richard Messersmith (Messersmith)
executed a guamntee. Plaintiff alleged it tendered the purchase price ofS240,000 to Marlipa,
Marlipa defaulted under the provisions of the parties' agreement, and Messersmith failed to
perform pursuant to the guarantee. Plaintiff commenced this action to recover $282,03g.40, an
amount which allegedly represents the outstanding balance owed on thc purchase price plus fees
and costs. Plaintiff moved herein for summary judgment. The issue is whether the November 12,
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2021 agreement is a merchant cash agreement. Defendant opposed the motion on the grounds
that the agreement is a loan.
The proponent of a summary judgment motion must make a prima facie showing of
entitlement tojudgment as a matter of law by tendering sufficient evidentiary proof in admissible
form to demonstratc the absence of any material issues of fact (see CpLR 3212; winegrad v New
York Univ. Med. Ctr.,64 NY2d 851,853 ll985l Zuckerman v Ciry of New york,49 Ny2d 557,
562 [1980]). It is fundamcntal that "summary judgment should only bc grantcd where there are
no material and triable issues offact" (srretclr v Tedesco,263 ADzd 53g, 539 [2d Dept 1999];
see Andre v Pomero.v,35 NY2d 361,362 [1974]) and that " . . . issue finding, as opposed to issue
determination, is the key to summary judgmcnt" (Stretch, 263 AD2d at 539, citing see Krupp v
Aetna Life & Cas. Co.,l03 AD2d 252,261 [2d Dept 1984]). The papers should be scrutinized in
the light most favorable to the party opposing the motion (Gitlin v Chirinkr'", 98 AD3d 561, 561 -
562 [2d,Dept20l2]. citing see Robinson v Strong Mem. Hosp.,98 ADZd 976 [4th Dept 1983]).
Upon such showing the burden shifts to the party opposing to raise a triable issue of fact. To
defeat amotion for summary judgment the opposing party must "show facts sufficient to require
a trial of any issue of fact" (see CPLR32|2; Zuckerman,4g Ny2d at 562).
Three factoru determine whether a purchase of receivables is a loan: (l) whether the
merchant's obligation of"repayment is absolutc or contingent"; (2) "whethcr the agreement has a
finite term"; and (3) whether the lender "has any recourse should the merchant declare banlruptcy,'
(K9 Bytes, Inc. v Arch Capital Funding, LLC,56 Misc 3d 807, 816-818 [Sup ct, westchester
county 20171) (K9 Bytes, 56 Misc 3d at 816-81 8). The analysis in this case begins with the terms
of the agreement, rather than the conduct of defendant (.seeK9 Bvtes, 56 Misc 3d at g l7). Here,
thc proffered agreement satisfies the indicia of a merchant cash agrccment, not a loan, and
2
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FILED: KINGS COUNTY CLERK 11/03/2022 05:34 PM INDEX NO. 500900/2022
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11/03/2022
defendants failed to raise a triable issue of fact. Accordingly, plaintiffls motion for sunnnary
judgment is granted. Plaintiff shall proceed to an inquest on the issue ofdamages.
ENTER:
Hon. Reginald A. Boddie
Justice, Supreme Court
HON. REGIT{AI..D A EODDIE
J.S.C.
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Preview
FILED: KINGS COUNTY CLERK 11/03/2022 05:34 PM INDEX NO. 523142/2022 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 11/03/2022 EXHIBIT 1 DECISION AND ORDER West Wolf Capital, LLC v. The Marlipa Corporation FILED: KINGS COUNTY CLERK 11/03/2022 05:34 PM INDEX NO. 500900/2022 523142/2022 NYSCEF DOC. NO. 25 24 RECEIVED NYSCEF: 07/13/2022 11/03/2022 At anl.A.S. ComnrcrcialPart I2 of rhe Suprcme Court ofthe State ofNcw York, held in and forthe CountyofKings, at the Courthouse, localed at 360 Adams Strcct, Borough ofBrooklyn, City and State ofNew York on the I 3th day ofJuly2022. PRESENT: Honorable Reginald A. Boddie Justice, Supreme Court WEST WOLF CAPITAL, LLC, Index No. 50090012022 Plaintifl. Cal. No. 19 MS I -agarnst- DECISION ANDORDER THE MARLIPA CORPORATION/ PNR FOR FORTE LLC D tsI A AMERICAN IMPORT AUTO GROUP, PAUL RICHARD MESSERSMITH, Defendants. ---------------------------x Recitation, as required by cPLR 2219 (a), ofthepapers considered in the review ofthis motion: Papers Numbered MSI Docs. # 1-24 Upon the foregoing cited papcrs, the decision and order on plaintiff's motion for summary judgment, pursuant to CPLR 3212, is as follows: On November 12,2021, plaintiff and defendant-seller The Marlipa Corporation (Marlipa) cntered into an agreemcnt wherein plaintiff purchascd $335,760.00 of Marlipa's future accounts receivable in exchange for $240,000. Defendant Paul Richard Messersmith (Messersmith) executed a guamntee. Plaintiff alleged it tendered the purchase price ofS240,000 to Marlipa, Marlipa defaulted under the provisions of the parties' agreement, and Messersmith failed to perform pursuant to the guarantee. Plaintiff commenced this action to recover $282,03g.40, an amount which allegedly represents the outstanding balance owed on thc purchase price plus fees and costs. Plaintiff moved herein for summary judgment. The issue is whether the November 12, 1 1 of 3 FILED: KINGS COUNTY CLERK 11/03/2022 05:34 PM INDEX NO. 500900/2022 523142/2022 NYSCEF DOC. NO. 25 24 RECEIVED NYSCEF: 07/13/2022 11/03/2022 2021 agreement is a merchant cash agreement. Defendant opposed the motion on the grounds that the agreement is a loan. The proponent of a summary judgment motion must make a prima facie showing of entitlement tojudgment as a matter of law by tendering sufficient evidentiary proof in admissible form to demonstratc the absence of any material issues of fact (see CpLR 3212; winegrad v New York Univ. Med. Ctr.,64 NY2d 851,853 ll985l Zuckerman v Ciry of New york,49 Ny2d 557, 562 [1980]). It is fundamcntal that "summary judgment should only bc grantcd where there are no material and triable issues offact" (srretclr v Tedesco,263 ADzd 53g, 539 [2d Dept 1999]; see Andre v Pomero.v,35 NY2d 361,362 [1974]) and that " . . . issue finding, as opposed to issue determination, is the key to summary judgmcnt" (Stretch, 263 AD2d at 539, citing see Krupp v Aetna Life & Cas. Co.,l03 AD2d 252,261 [2d Dept 1984]). The papers should be scrutinized in the light most favorable to the party opposing the motion (Gitlin v Chirinkr'", 98 AD3d 561, 561 - 562 [2d,Dept20l2]. citing see Robinson v Strong Mem. Hosp.,98 ADZd 976 [4th Dept 1983]). Upon such showing the burden shifts to the party opposing to raise a triable issue of fact. To defeat amotion for summary judgment the opposing party must "show facts sufficient to require a trial of any issue of fact" (see CPLR32|2; Zuckerman,4g Ny2d at 562). Three factoru determine whether a purchase of receivables is a loan: (l) whether the merchant's obligation of"repayment is absolutc or contingent"; (2) "whethcr the agreement has a finite term"; and (3) whether the lender "has any recourse should the merchant declare banlruptcy,' (K9 Bytes, Inc. v Arch Capital Funding, LLC,56 Misc 3d 807, 816-818 [Sup ct, westchester county 20171) (K9 Bytes, 56 Misc 3d at 816-81 8). The analysis in this case begins with the terms of the agreement, rather than the conduct of defendant (.seeK9 Bvtes, 56 Misc 3d at g l7). Here, thc proffered agreement satisfies the indicia of a merchant cash agrccment, not a loan, and 2 2 of 3 FILED: KINGS COUNTY CLERK 11/03/2022 05:34 PM INDEX NO. 500900/2022 523142/2022 NYSCEF DOC. NO. 25 24 RECEIVED NYSCEF: 07/13/2022 11/03/2022 defendants failed to raise a triable issue of fact. Accordingly, plaintiffls motion for sunnnary judgment is granted. Plaintiff shall proceed to an inquest on the issue ofdamages. ENTER: Hon. Reginald A. Boddie Justice, Supreme Court HON. REGIT{AI..D A EODDIE J.S.C. 3 3 of 3