Preview
FILED: NASSAU COUNTY CLERK 10/25/2023 02:30 PM INDEX NO. 614322/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/25/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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GREEN VALLEY Index No.: 614322/2023
Plaintiff,
-against-
AFFIDAVIT
VSYD, LLC D/B/A VSYD; 718 MANAGEMENT
GROUP, LLC D/B/A 718 MANAGEMENT GROUP;
BSAXFL, LLC D/B/A BSAXFL
and ALEKSANDR RABKIN
Defendants.
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STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Gabriel Mann, being duly sworn, deposes and says:
1. I am a manager of GREEN VALLEY (“GV” or “Plaintiff”). GV is the plaintiff in this
action. I am familiar with the facts of this case and the prior proceedings herein. I make this
affidavit in support of GV’s motion for summary judgment, against Defendants VSYD, LLC
D/B/A VSYD ; 718 MANAGEMENT GROUP, LLC D/B/A 718 MANAGEMENT GROUP;
BSAXFL, LLC D/B/A BSAXFL and ALEKSANDR RABKIN (“Defendants”).
2. GV is engaged in the purchase and sale of future receivables and sales proceeds
between commercial entities. This business is sometimes referred to as “merchant cash
advance.”
3. In my capacity as a manager of the Plaintiff I have access to Plaintiff’s business
records, maintained in the ordinary course of regularly conducted business activity, including
the business records for and relating to the Defendants. I make this Affidavit based upon my
review of those records relating to the Defendants and from my own personal knowledge of
how they are kept and maintained. The records for the Defendants are maintained by Plaintiff
in the course of its regularly conducted business activities and are made at or near the time of
the event, by or from information transmitted by a person with knowledge. As to Plaintiff’s
business records that consist of documents created by third parties, if any, Plaintiff relies on
the accuracy of such records in conducting its business.
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FILED: NASSAU COUNTY CLERK 10/25/2023 02:30 PM INDEX NO. 614322/2023
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4. Defendant VSYD, LLC D/B/A VSYD; 718 MANAGEMENT GROUP, LLC D/B/A
718 MANAGEMENT GROUP; BSAXFL, LLC D/B/A BSAXFL (“Merchant”) is a company
existing under the laws of the state of Florida with its principal place of business in Hollywood,
FL. Exhibit A, Revenue Purchase Agreement.
5. Defendant ALEKSANDR RABKIN (“Guarantor”) is a resident of Florida residing in
Hallandale Beach, FL. She owns Merchant and guaranteed that Merchant would not breach the
Agreement which is the subject of this lawsuit and is described in more detail herein, Exhibit
A.
6. On July 13, 2023, GV and Merchant entered into a Revenue Purchase Agreement (the
“Agreement”) pursuant to which Defendant Merchant sold future receivables and sales
proceeds with a face value of $42,000.00 to GV for $30,000.00 from GV. The plain language
of the Merchant Agreement states:
Merchant(s) hereby sell, assign, and transfer to GV (making GV the absolute
owner) in consideration of the funds provided (“Purchase Price”) specified
above, all of each Merchant’s future accounts, contract rights, and other
obligations arising from or relating to the payment of monies from each
Merchant’s customers and/or other third party payors (the “Receivables”,
defined as all payments made by cash, check, credit or debit card, electronic
transfer, or other form of monetary payment in the ordinary course of each
merchant’s business), for the payment of each Merchant’s sale of goods or
services until the amount specified above (the “Receivables Purchased
Amount”) has been delivered by Merchant(s) to GV. Each Merchant hereby
acknowledges that until the Receivables Purchased Amount has been received
in full by GV, each Merchant’s Receivables, up to the balance of the
Receivables Purchased Amount, are the property of GV and not the property of
any Merchant. Each Merchant agrees that it is a fiduciary for GV and that each
Merchant will hold Receivables in trust for GV in its capacity as a fiduciary for
GV.
Purchase Price: $30,000.00 Purchased Percent: = 8.64%
Purchased Amount: $42,000.00
Exhibit A, Sale of Future Receipts
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7. Under the Agreement, Defendant Merchant agreed to pay GV the purchased
$42,000.00 by ensuring that all of its sales proceeds and receivables were deposited into one
designated deposit account and permitting GV to electronically debit from that account 8.64%
percent of Defendant Merchant’s daily sales proceeds until such time as GV collected the
purchased $42,000.00. Exhibit A.
8. Merchant and GV memorialized their mutual intent to enter into a true purchase
and sale agreement by expressly stating same in the Agreement. The Agreement states:
The Receivables Purchased Amount shall be paid to GV by each Merchant
irrevocably authorizing only one depositing account acceptable to GV (the
“Account”) to remit the percentage specified above (the “Specified
Percentage”) of each Merchant’s settlement amounts due from each transaction,
until such time as GV receives payment in full of the Receivables Purchased
Amount. Each Merchant hereby authorizes GV to ACH debit the specified
remittances and any applicable fees listed in Section 2 from the Account on a
daily basis as of the next business day after the date of this Agreement and will
provide GV with all required access codes and monthly bank statements. Each
Merchant understands that it will be held responsible for any fees resulting from
a rejected ACH attempt or an Event of Default (see Section 2). GV is not
responsible for any overdrafts or rejected transactions that may result from GV’s
ACH debiting the Specified Percentage amounts under the terms of this
Agreement. Each Merchant acknowledges and agrees that until the amount of
the Receivables collected by GV exceeds the amount of the Purchase Price, GV
will be permitted not treat any amount collected under this Agreement as profit
for taxation and accounting purposes.
Exhibit A, Section 1. Sale of Receipts.
9. On July 13, 2023, GV performed its part of the Agreement by depositing
$30,000.00 less applicable fees in accordance with the Agreement to the Merchant in
accordance with the Merchant’s instructions. The proof of funding is attached hereto as Exhibit
E.
10. After GV paid the Purchase Price, Defendant Merchant partially performed its
part of the Agreement between July 13, 2023, and August 30, 2023, during this time period
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where Merchant performed, Merchant remitted $10,163.64 of the purchased sales proceed. The
transaction history is attached hereto as Exhibit B.
11. GV did not collect anything other than the sales proceeds the GV was entitled
to collect. GV has complied with all of its obligations under the Agreement.
12. On August 30, 2023, GV discovered there were insufficient funds held in the
Merchants account and, consequently, deprived 8.64% of the daily sales proceeds due to GV.
All attempts to debit GV’s 8.64% of sales proceeds from the designated deposit account result
in an ACH debit rejection notice R01.
13. This action for breach of the Agreement was commenced by filing a Summons
and Verified Complaint on September 5, 2023. The Defendants filed an Answer on or about
October 3, 2023. Copies of the Summons, Verified Complaint, and Answer are attached
collectively hereto as Exhibit C.
14. On or about October 3, 2023, Plaintiff served a Notice to Admit, Demand for
Discovery, and Demand for Interrogatories on Defendants. A copy of the Notice to Admit,
Demand for Discovery, and Demand for Interrogatories are attached collectively hereto as
Exhibit D.
15. Between July 13, 2023, and the present date, Merchant collected at least
$486,111.11 in revenue. Exhibit D, Notice to Admit. 8.64% of the sales proceeds during that
time period is $42,000.00, substantially more than $10,163.64 that was actually remitted to GV.
The Merchant and Guarantor have simply withheld $31,836.36 of sales proceeds lawfully
purchased by GV with the goal of benefitting from both the purchase price paid by GV and the
purchased sales proceeds that GV lawfully purchased. The Merchant tendered $10,163.64 of
the purchased $42,000.00 of receivables leaving a balance of $31,836.36. The Defendants
incurred a default fee in the amount of $2,500.00 making the balance due after fees $34,336.36.
16. GV has been harmed by the Merchant’s and Guarantor’s breach of the Agreement.
Equity does not favor the Defendants, who have been enriched to GV’s detriment by breaching
the Agreement and withholding sales proceeds that were purchased by GV in the amount of
$34,336.36.
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FILED: NASSAU COUNTY CLERK 10/25/2023 02:30 PM INDEX NO. 614322/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/25/2023
WHEREFORE, the Court should grant the Plaintiff GV’s motion for summary
judgment in its entirety, and award GV damages in the amount $34,336.36, plus pre-judgment
interest at the statutory rate from August 30, 2023, costs taxed by the clerk, and post-judgment
interest at 9%.
Gabriel Mann
Sworn to before this
25
day of October 2023
Notary Public
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Preview
FILED: NASSAU COUNTY CLERK 10/25/2023 02:30 PM INDEX NO. 614322/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/25/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------------------------------------X GREEN VALLEY Index No.: 614322/2023 Plaintiff, -against- AFFIDAVIT VSYD, LLC D/B/A VSYD; 718 MANAGEMENT GROUP, LLC D/B/A 718 MANAGEMENT GROUP; BSAXFL, LLC D/B/A BSAXFL and ALEKSANDR RABKIN Defendants. ---------------------------------------------------------------------X STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK ) Gabriel Mann, being duly sworn, deposes and says: 1. I am a manager of GREEN VALLEY (“GV” or “Plaintiff”). GV is the plaintiff in this action. I am familiar with the facts of this case and the prior proceedings herein. I make this affidavit in support of GV’s motion for summary judgment, against Defendants VSYD, LLC D/B/A VSYD ; 718 MANAGEMENT GROUP, LLC D/B/A 718 MANAGEMENT GROUP; BSAXFL, LLC D/B/A BSAXFL and ALEKSANDR RABKIN (“Defendants”). 2. GV is engaged in the purchase and sale of future receivables and sales proceeds between commercial entities. This business is sometimes referred to as “merchant cash advance.” 3. In my capacity as a manager of the Plaintiff I have access to Plaintiff’s business records, maintained in the ordinary course of regularly conducted business activity, including the business records for and relating to the Defendants. I make this Affidavit based upon my review of those records relating to the Defendants and from my own personal knowledge of how they are kept and maintained. The records for the Defendants are maintained by Plaintiff in the course of its regularly conducted business activities and are made at or near the time of the event, by or from information transmitted by a person with knowledge. As to Plaintiff’s business records that consist of documents created by third parties, if any, Plaintiff relies on the accuracy of such records in conducting its business. 1 of 5 FILED: NASSAU COUNTY CLERK 10/25/2023 02:30 PM INDEX NO. 614322/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/25/2023 4. Defendant VSYD, LLC D/B/A VSYD; 718 MANAGEMENT GROUP, LLC D/B/A 718 MANAGEMENT GROUP; BSAXFL, LLC D/B/A BSAXFL (“Merchant”) is a company existing under the laws of the state of Florida with its principal place of business in Hollywood, FL. Exhibit A, Revenue Purchase Agreement. 5. Defendant ALEKSANDR RABKIN (“Guarantor”) is a resident of Florida residing in Hallandale Beach, FL. She owns Merchant and guaranteed that Merchant would not breach the Agreement which is the subject of this lawsuit and is described in more detail herein, Exhibit A. 6. On July 13, 2023, GV and Merchant entered into a Revenue Purchase Agreement (the “Agreement”) pursuant to which Defendant Merchant sold future receivables and sales proceeds with a face value of $42,000.00 to GV for $30,000.00 from GV. The plain language of the Merchant Agreement states: Merchant(s) hereby sell, assign, and transfer to GV (making GV the absolute owner) in consideration of the funds provided (“Purchase Price”) specified above, all of each Merchant’s future accounts, contract rights, and other obligations arising from or relating to the payment of monies from each Merchant’s customers and/or other third party payors (the “Receivables”, defined as all payments made by cash, check, credit or debit card, electronic transfer, or other form of monetary payment in the ordinary course of each merchant’s business), for the payment of each Merchant’s sale of goods or services until the amount specified above (the “Receivables Purchased Amount”) has been delivered by Merchant(s) to GV. Each Merchant hereby acknowledges that until the Receivables Purchased Amount has been received in full by GV, each Merchant’s Receivables, up to the balance of the Receivables Purchased Amount, are the property of GV and not the property of any Merchant. Each Merchant agrees that it is a fiduciary for GV and that each Merchant will hold Receivables in trust for GV in its capacity as a fiduciary for GV. Purchase Price: $30,000.00 Purchased Percent: = 8.64% Purchased Amount: $42,000.00 Exhibit A, Sale of Future Receipts 2 of 5 FILED: NASSAU COUNTY CLERK 10/25/2023 02:30 PM INDEX NO. 614322/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/25/2023 7. Under the Agreement, Defendant Merchant agreed to pay GV the purchased $42,000.00 by ensuring that all of its sales proceeds and receivables were deposited into one designated deposit account and permitting GV to electronically debit from that account 8.64% percent of Defendant Merchant’s daily sales proceeds until such time as GV collected the purchased $42,000.00. Exhibit A. 8. Merchant and GV memorialized their mutual intent to enter into a true purchase and sale agreement by expressly stating same in the Agreement. The Agreement states: The Receivables Purchased Amount shall be paid to GV by each Merchant irrevocably authorizing only one depositing account acceptable to GV (the “Account”) to remit the percentage specified above (the “Specified Percentage”) of each Merchant’s settlement amounts due from each transaction, until such time as GV receives payment in full of the Receivables Purchased Amount. Each Merchant hereby authorizes GV to ACH debit the specified remittances and any applicable fees listed in Section 2 from the Account on a daily basis as of the next business day after the date of this Agreement and will provide GV with all required access codes and monthly bank statements. Each Merchant understands that it will be held responsible for any fees resulting from a rejected ACH attempt or an Event of Default (see Section 2). GV is not responsible for any overdrafts or rejected transactions that may result from GV’s ACH debiting the Specified Percentage amounts under the terms of this Agreement. Each Merchant acknowledges and agrees that until the amount of the Receivables collected by GV exceeds the amount of the Purchase Price, GV will be permitted not treat any amount collected under this Agreement as profit for taxation and accounting purposes. Exhibit A, Section 1. Sale of Receipts. 9. On July 13, 2023, GV performed its part of the Agreement by depositing $30,000.00 less applicable fees in accordance with the Agreement to the Merchant in accordance with the Merchant’s instructions. The proof of funding is attached hereto as Exhibit E. 10. After GV paid the Purchase Price, Defendant Merchant partially performed its part of the Agreement between July 13, 2023, and August 30, 2023, during this time period 3 of 5 FILED: NASSAU COUNTY CLERK 10/25/2023 02:30 PM INDEX NO. 614322/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/25/2023 where Merchant performed, Merchant remitted $10,163.64 of the purchased sales proceed. The transaction history is attached hereto as Exhibit B. 11. GV did not collect anything other than the sales proceeds the GV was entitled to collect. GV has complied with all of its obligations under the Agreement. 12. On August 30, 2023, GV discovered there were insufficient funds held in the Merchants account and, consequently, deprived 8.64% of the daily sales proceeds due to GV. All attempts to debit GV’s 8.64% of sales proceeds from the designated deposit account result in an ACH debit rejection notice R01. 13. This action for breach of the Agreement was commenced by filing a Summons and Verified Complaint on September 5, 2023. The Defendants filed an Answer on or about October 3, 2023. Copies of the Summons, Verified Complaint, and Answer are attached collectively hereto as Exhibit C. 14. On or about October 3, 2023, Plaintiff served a Notice to Admit, Demand for Discovery, and Demand for Interrogatories on Defendants. A copy of the Notice to Admit, Demand for Discovery, and Demand for Interrogatories are attached collectively hereto as Exhibit D. 15. Between July 13, 2023, and the present date, Merchant collected at least $486,111.11 in revenue. Exhibit D, Notice to Admit. 8.64% of the sales proceeds during that time period is $42,000.00, substantially more than $10,163.64 that was actually remitted to GV. The Merchant and Guarantor have simply withheld $31,836.36 of sales proceeds lawfully purchased by GV with the goal of benefitting from both the purchase price paid by GV and the purchased sales proceeds that GV lawfully purchased. The Merchant tendered $10,163.64 of the purchased $42,000.00 of receivables leaving a balance of $31,836.36. The Defendants incurred a default fee in the amount of $2,500.00 making the balance due after fees $34,336.36. 16. GV has been harmed by the Merchant’s and Guarantor’s breach of the Agreement. Equity does not favor the Defendants, who have been enriched to GV’s detriment by breaching the Agreement and withholding sales proceeds that were purchased by GV in the amount of $34,336.36. 4 of 5 FILED: NASSAU COUNTY CLERK 10/25/2023 02:30 PM INDEX NO. 614322/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/25/2023 WHEREFORE, the Court should grant the Plaintiff GV’s motion for summary judgment in its entirety, and award GV damages in the amount $34,336.36, plus pre-judgment interest at the statutory rate from August 30, 2023, costs taxed by the clerk, and post-judgment interest at 9%. Gabriel Mann Sworn to before this 25 day of October 2023 Notary Public 5 of 5