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FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
Gold Capital Funding,
Index No.:
Plaintiff, 035349/2023
-against-
AFFIRMATION IN
SARAH M. WITHROW, DMD LLC / SARAH M SUPPORT OF
WITHROW DMD LLC / SARAH M. WITHROW, MOTION
DMD, LLC / SARAH M WITHROW, DMD / M
WITHROW SUSAN DMD / DR. SARAH
WITHROW, DMD / ARLINGTON DENTISTRY -
SARAH M WITHROW DMD LLC / ARLINGTON
DENTISTRY - SARAH M WITHROW, DMD / DR.
SARAH WITHROW, DMD, DENTISTRY
PRACTITIONER / DBA ARLINGTON DENTISTRY,
and SARAH MICHELLE WITHROW,
Defendants,
Adam Nichols, Esq., an attorney duly licensed to practice law before the Courts
of the State of New York, affirms the truth of the following under penalty of perjury:
1) I am an attorney with Piekarski Law PLLC, attorneys for Plaintiff, Gold Capital
Funding (“Plaintiff”), in the above-captioned action and as such, I am fully familiar with the facts
and circumstances of this action.
2) I make this affirmation in support of the within motion for summary judgment,
pursuant to CPLR 3212, in favor of the Plaintiff and against the Defendants, SARAH M.
WITHROW, DMD LLC / SARAH M WITHROW DMD LLC / SARAH M. WITHROW, DMD,
LLC / SARAH M WITHROW, DMD / M WITHROW SUSAN DMD / DR. SARAH WITHROW,
DMD / ARLINGTON DENTISTRY - SARAH M WITHROW DMD LLC / ARLINGTON
DENTISTRY - SARAH M WITHROW, DMD / DR. SARAH WITHROW, DMD, DENTISTRY
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PRACTITIONER / DBA ARLINGTON DENTISTRY (“Merchant”), and SARAH MICHELLE
WITHROW (“Guarantor”) (“Merchant” and “Guarantor” collectively referred to as “Defendants”),
jointly and severally, in the amount of $37,351.62 plus prejudgment interest at the rate of 9% from
the date of Defendants’ breach to the date of entry of judgment, post-judgment interest from the date
of entry of judgment until paid, together with costs, disbursements, attorney’s fees, and such other,
further, and different relief as may be just and proper.
3) Plaintiff will rely upon, and hereby incorporates by reference, the following exhibits:
Exhibit A: Revenue Purchase Agreement
Exhibit B: Transaction/Remittance History
Exhibit C: Proof of Funding
Exhibit D: Pleadings
Exhibit E: Discovery
4) For the reasons set forth herein, as well as the accompanying affidavit(s), exhibits,
statement of material facts, and all pleadings and proceedings heretofore had herein, it is respectfully
submitted that there are no material issues of fact and the Plaintiff’s motion should be granted in its
entirety.
THE PARTIES
5) Plaintiff is an entity authorized to do business in the State of New York. See, Ex. A,
Merchant Information.
6) Merchant is a company organized under the laws of the State of Alabama. See, Ex. A,
Merchant Information.
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7) Guarantor is an individual residing in the State of Alabama. See, Ex. A, Merchant
Information.
8) Guarantor is the owner and operator of Merchant. See, Ex. A, Merchant Information.
PROCEDURAL HISTORY
9) This action for breach of a Revenue Purchase Agreement (the “Agreement”) was
commenced on 10/26/2023 by the filing of a summons and verified complaint. See, Ex. D.
10) Issue was joined by service of an answer. See, Ex. D.
11) Discovery exchanged thus far is annexed hereto. See, Ex. E.
FACTUAL BACKGROUND
12) On 07/07/2023, Plaintiff entered into the Agreement with Defendants, wherein
Merchant sold $50,750.00 of its business receivables to Plaintiff, to be paid to Plaintiff from a
percentage of the Merchant’s daily revenue, for an upfront sum of $35,000.00 from Plaintiff. See,
Ex. A, “Purchase Price”, “Purchased Percent”, “Purchased Amount”, “Payment Frequency”, and
“Remittance”.
13) In the Agreement, the Merchant made representations, warranties, and covenants
including but not limited to its financial condition and use of funds, and promises to refrain from any
and all “Events of Default” as set forth in the Revenue Purchase Agreement, including but not limited
to interfering with payments to Plaintiff, terminating Plaintiff’s access to the designated business
bank account, or diverting funds from the designated business bank account until after the Marchant
has fully performed under the Agreement. See, Ex. A, “Representations, Warranties and
Covenenants” and “Events of Default and Remedies”.
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14) The Merchant further agreed that in the event of any action or circumstance
constituting a breach or default of any of the foregoing, the entire outstanding balance owed by the
Merchant at the time of such breach or default would become immediately due and payable to
Plaintiff. See, Ex. A, “Events of Default and Remedies”.
15) The Guarantor personally guaranteed the Merchant’s representations in the Agreement,
the Merchant’s performance under the Agreement, and that the Merchant would not breach the
Agreement. See, Ex. A, “Guaranty of Performance”.
16) The Plaintiff timely performed under the Agreement by causing the deposit of the
“Purchase Price” of $35,000.00, less applicable fees in accordance with the Agreement, to the
Merchant’s business account in accordance with the Defendants’ instructions. See, Ex. C.
17) The Merchant performed under the Agreement on the dates and in the amounts as set
forth in the Transaction/Remittance History, during which time Merchant remitted to the Plaintiff
$24,734.88 of the Purchased Amount of $50,750.00, leaving a principal balance of $26,015.12, along
with NSF Fees in the amount of $70.00, a Default Fee in the amount of $3,000.00, and Attorney’s
Fees in the amount of $8,266.50, making the total balance due and owing $37,351.62. See, Ex. B
and See also, Ex. A, “Attorney’s Fees” and “The Fee Structure”.
18) The Agreement provides that “[t]he occurrence of any of the following events shall
constitute an ‘Event of Default’ hereunder
a) Merchant or Guarantor(s) shall violate any term or covenant in this Agreement
b) Any representation or warranty 1 by Merchant or Guarantor(s) in this Agreement
1
See, Ex. A, “Representations, Warranties and Covenants”.
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shall prove to have been incorrect, false or misleading in any material respect
when made
c) the sending of notice of termination by Merchant or verbally notifying
[Plaintiff] of its intent to breach this Agreement
d) the Merchant fails to request a Reconciliation 2 or Adjustments 3 to the
Remittance pursuant to Paragraphs .3 .4 (as appropriate) within 1 business
day of a Merchant's Remittance returned of insufficient funds in the Account
such that the ACH of the Remittance amount was not be honored by Merchant's
bank
e) Merchant fails to provide its bank statements, and/or month to date bank
activity, accounts receivable reports, and/or bank login information within two
(2) business days of a request by [Plaintiff], or the merchant changes their bank
login information (which was previously-provided to [Plaintiff]) without
providing [Plaintiff] with the updated login information in writing within 48
hours of such update 4
f) Merchant shall voluntarily transfer or sell all or substantially all of its assets
g) Merchant shall make or send notice of any intended bulk sale or transfer by
Merchant
2
See, Ex. A, “Reconciliation”.
3
See, Ex. A, “Adjustments to Remittance”.
4
See, Ex. A, “Financial Condition”.
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h) Merchant shall use multiple depository accounts 5 without the prior written
consent of [Plaintiff] or takes any other action that intentionally interferes 6 with
or prevents [Plaintiff] from receiving the Purchased Amount in accordance with
the terms of this Agreement
i) Merchant shall enter into any financing agreements with any other party
including but not limited to: Loans, Merchant Cash Advances, Receivables
financing, or any other agreement that will increase the total debt owed by
Merchant to any other party 7
j) Merchant shall change its depositing account without the prior written consent
of [Plaintiff]
k) Merchant shall close its depositing account used for ACH debits without the
prior written consent of [Plaintiff]
l) Merchant's bank returns a code other than NSF cutting [Plaintiff] from its
collections
m) Merchant or any Owner/ Guarantor(s), directly or indirectly, causes to be
formed a new entity or otherwise becomes associated with any new or existing
entity, which operates a business similar to or competitive with that of Merchant
5
“[Plaintiff] will debit the Remittance each business day from only one depositing bank account, which account must be
acceptable to, and pre-approved by, [Plaintiff] (the “Account”) into which Merchant and Merchant’s customers shall remit
the Receipts from each Transaction, until such time as [Plaintiff] receives payment in full of the Purchased Amount.” See,
Ex. A, “Merchant Information”.
6
See, Ex. A, “Use of Funds” and “Unencumbered Receipts”.
7
This practice is colloquially known as “stacking”.
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or
n) Merchant shall default under any of the terms, covenants and conditions
of any other agreement with [Plaintiff].”
See, Ex. A, “Events of Default”.
19) The Merchant breached the Agreement on 10/06/2023, when Plaintiff was deprived of
the Remittance due and the Merchant’s bank returned the code of “R01 – Insufficient Funds” and the
Merchant thereafter failed to timely request a Reconciliation or Adjustment to its Remittance. The
Merchant is liable for the occurrence of the following Event of Default: “the Merchant fails to request
a Reconciliation 8 or Adjustments 9 to the Remittance pursuant to Paragraphs .3 .4 (as appropriate)
within 1 business day of a Merchant's Remittance returned of insufficient funds in the Account such
that the ACH of the Remittance amount was not be honored by Merchant's bank”. See, Ex. A, “Events
of Default”, paragraph 3.1(d), See also, Ex. B, and See also, Affidavit in Support of Motion.
20) The Plaintiff’s attempts to debit the amount to which it was entitled from Merchant’s
designated account resulted in an ACH debit rejection notice. See, Ex. B.
ARGUMENT
DEFENDANTS HAVE BREACHED THE REVENUE PURCHASE AGREEMENT
21) Based on the accompanying affidavit(s), exhibits, statement of material facts, and all
pleadings and proceedings heretofore had herein, there are no material issues of fact as to
Defendants’ breach. More specifically, the Merchant breached the Agreement, the Guarantor
8
See, Ex. A, “Reconciliation”.
9
See, Ex. A, “Adjustments to Remittance”.
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breached the guarantee, and the Plaintiff suffered damages as a direct and proximate result. As such,
the Plaintiff’s motion should be granted in its entirety.
22) “It is well-established that summary judgment should be granted only if there are no
material and triable issues of fact (internal citations omitted).” See, Hantz v. Fishman, 155 A.D.2d
415, 547 N.Y.S.2d 350 (2nd Dept. 1989).
23) Once the movant has tendered evidentiary proof in admissible form sufficient to
warrant the Court in directing judgment as a matter of law, the burden shifts to the opposing party to
“produce evidentiary proof in admissible form sufficient to require a trial of material questions of
fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the
requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated
allegations or assertions are insufficient (emphasis added) (internal citations omitted).” See,
Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980).
24) In deciding a motion for summary judgment, the Court must ascertain whether any
genuine issues of fact exist in the opposing party’s proofs as “laid bare by the parties’ submission of
affidavits based on personal knowledge and documentary evidence, rather than in their conclusory
or speculative averments.” See, Behar v. Ordover, 92 A.D.2d 557, 459 N.Y.S.2d 304 (2nd Dept.
1983).
25) As no party in opposition can rebut the Plaintiff’s prima facie entitlement to judgment
as a matter of law, it is respectfully submitted that the Plaintiff’s motion should be granted in its
entirety.
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Merchant is Liable to Plaintiff for Breach of Contract
26) “The essential elements of a breach of contract cause of action are ‘the existence of a
contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her
contractual obligations, and damages resulting from the breach’ (internal citations omitted).” See,
Canzona v. Atanasio, 118 A.D.3d 837, 989 N.Y.S.2d 44 (2nd Dept. 2014).
27) “The ‘clearest of contract terms’ are generally to be found in a written agreement
executed by contracting parties, which ‘when unambiguous on its face must be enforced according
to the plain meaning’ (internal citations omitted).” See, Zheng v. City of New York, 19 N.Y.3d 556,
973 N.E.2d 711, 950 N.Y.S.2d 301 (2012).
28) In the instant matter, the Plaintiff has established the existence of the Agreement, its
performance under the Agreement, the Defendants’ breach thereof, and monetary damages incurred
by the Plaintiff as a direct and proximate result of the breach. As such, it is respectfully submitted
that the Plaintiff is entitled to judgment as a matter of law.
29) Pursuant to CPLR 5001(a), the Plaintiff is entitled to prejudgment interest at the
statutory rate as provided in CPLR 5004 on its breach of contract cause of action running from the
date of the breach. See, Sokolik v. Pateman, 114 A.D.3d 839, 981 N.Y.S.2d 111 (2nd Dept. 2014).
Here, the breach occurred on 10/06/2023 and the Plaintiff is therefore entitled to prejudgment interest
from that date of breach to the date of entry of judgment.
30) Pursuant to CPLR 5003, “[e]very money judgment shall bear interest from the date of
its entry.” As such, the Plaintiff is entitled to post-judgment interest at the statutory rate as provided
in CPLR 5004 from the date of entry of judgment until such time as the judgment is paid, satisfied,
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or otherwise resolved in full.
31) Based on the foregoing, it is respectfully submitted that the Plaintiff is entitled to
judgment as a matter of law against the Merchant on its breach of contract cause of action in the
amount of $37,351.62, together with prejudgment interest from the date of the breach, plus costs,
disbursements, and fees.
Guarantor is Liable to Plaintiff for Breach of the Personal Guaranty
32) The “Guaranty of Performance” knowingly and voluntarily agreed to by the Guarantor
clearly and unequivocally provides that the Guarantor is jointly and severally liable to the Plaintiff
under the terms of the Agreement for any breach thereof. See, Ex. A, “Guaranty of Performance”.
33) As set forth in herein, as well as the accompanying affidavit(s), exhibits, statement of
material facts, memorandum, and all pleadings and proceedings heretofore had herein, the Merchant
failed to perform in accordance with the Agreement, causing damages to the Plaintiff.
34) The Guarantor is therefore jointly and severally liable to the Plaintiff for the total
damages incurred, to wit, the sum of $37,351.62, together with prejudgment interest from the date
of the breach, plus costs, disbursements, and fees and it is respectfully submitted that this motion
should be granted as against the Guarantor and judgment entered accordingly.
CONCLUSION
35) Based on the foregoing, it is respectfully submitted that the Plaintiff’s motion should
be granted in its entirety, granting summary judgment in favor of the Plaintiff and against the
Defendants, jointly and severally, in the amount of $37,351.62, together with prejudgment interest
from the date of the breach, plus costs, disbursements, and fees.
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WHEREFORE, Plaintiff respectfully requests that the instant motion be granted in its entirety,
together with such other, further, and different relief as may be just and proper.
Dated: New York, New York
January 16, 2024 /s/ Adam Nichols, Esq.
Adam Nichols, Esq.
Piekarski Law PLLC
Attorneys for Plaintiff
1 Whitehall St, 2nd Fl
New York, New York 10004
Phone: (646) 968-8203
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CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR § 202.8-b
Supreme Court of the State of New York
I, Adam Nichols, an attorney duly admitted to practice law before the courts of the State
of New York, hereby certifies that this Affirmation complies with the word count limit set forth
in 202 NYCRR § 202.8-b. The total number of words in the forgoing affirmation in support,
exclusive of the caption and signature block, is 2500. In preparing this certification, I have relied
on the word count feature of Microsoft Word.
Dated: New York, New York
January 16, 2024 /s/ Adam Nichols, Esq.
Adam Nichols, Esq.
Piekarski Law PLLC
Attorneys for Plaintiff
1 Whitehall St, 2nd Fl
New York NY 10004
(646) 968-8203
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Preview
FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND Gold Capital Funding, Index No.: Plaintiff, 035349/2023 -against- AFFIRMATION IN SARAH M. WITHROW, DMD LLC / SARAH M SUPPORT OF WITHROW DMD LLC / SARAH M. WITHROW, MOTION DMD, LLC / SARAH M WITHROW, DMD / M WITHROW SUSAN DMD / DR. SARAH WITHROW, DMD / ARLINGTON DENTISTRY - SARAH M WITHROW DMD LLC / ARLINGTON DENTISTRY - SARAH M WITHROW, DMD / DR. SARAH WITHROW, DMD, DENTISTRY PRACTITIONER / DBA ARLINGTON DENTISTRY, and SARAH MICHELLE WITHROW, Defendants, Adam Nichols, Esq., an attorney duly licensed to practice law before the Courts of the State of New York, affirms the truth of the following under penalty of perjury: 1) I am an attorney with Piekarski Law PLLC, attorneys for Plaintiff, Gold Capital Funding (“Plaintiff”), in the above-captioned action and as such, I am fully familiar with the facts and circumstances of this action. 2) I make this affirmation in support of the within motion for summary judgment, pursuant to CPLR 3212, in favor of the Plaintiff and against the Defendants, SARAH M. WITHROW, DMD LLC / SARAH M WITHROW DMD LLC / SARAH M. WITHROW, DMD, LLC / SARAH M WITHROW, DMD / M WITHROW SUSAN DMD / DR. SARAH WITHROW, DMD / ARLINGTON DENTISTRY - SARAH M WITHROW DMD LLC / ARLINGTON DENTISTRY - SARAH M WITHROW, DMD / DR. SARAH WITHROW, DMD, DENTISTRY 1 1 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 PRACTITIONER / DBA ARLINGTON DENTISTRY (“Merchant”), and SARAH MICHELLE WITHROW (“Guarantor”) (“Merchant” and “Guarantor” collectively referred to as “Defendants”), jointly and severally, in the amount of $37,351.62 plus prejudgment interest at the rate of 9% from the date of Defendants’ breach to the date of entry of judgment, post-judgment interest from the date of entry of judgment until paid, together with costs, disbursements, attorney’s fees, and such other, further, and different relief as may be just and proper. 3) Plaintiff will rely upon, and hereby incorporates by reference, the following exhibits: Exhibit A: Revenue Purchase Agreement Exhibit B: Transaction/Remittance History Exhibit C: Proof of Funding Exhibit D: Pleadings Exhibit E: Discovery 4) For the reasons set forth herein, as well as the accompanying affidavit(s), exhibits, statement of material facts, and all pleadings and proceedings heretofore had herein, it is respectfully submitted that there are no material issues of fact and the Plaintiff’s motion should be granted in its entirety. THE PARTIES 5) Plaintiff is an entity authorized to do business in the State of New York. See, Ex. A, Merchant Information. 6) Merchant is a company organized under the laws of the State of Alabama. See, Ex. A, Merchant Information. 2 2 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 7) Guarantor is an individual residing in the State of Alabama. See, Ex. A, Merchant Information. 8) Guarantor is the owner and operator of Merchant. See, Ex. A, Merchant Information. PROCEDURAL HISTORY 9) This action for breach of a Revenue Purchase Agreement (the “Agreement”) was commenced on 10/26/2023 by the filing of a summons and verified complaint. See, Ex. D. 10) Issue was joined by service of an answer. See, Ex. D. 11) Discovery exchanged thus far is annexed hereto. See, Ex. E. FACTUAL BACKGROUND 12) On 07/07/2023, Plaintiff entered into the Agreement with Defendants, wherein Merchant sold $50,750.00 of its business receivables to Plaintiff, to be paid to Plaintiff from a percentage of the Merchant’s daily revenue, for an upfront sum of $35,000.00 from Plaintiff. See, Ex. A, “Purchase Price”, “Purchased Percent”, “Purchased Amount”, “Payment Frequency”, and “Remittance”. 13) In the Agreement, the Merchant made representations, warranties, and covenants including but not limited to its financial condition and use of funds, and promises to refrain from any and all “Events of Default” as set forth in the Revenue Purchase Agreement, including but not limited to interfering with payments to Plaintiff, terminating Plaintiff’s access to the designated business bank account, or diverting funds from the designated business bank account until after the Marchant has fully performed under the Agreement. See, Ex. A, “Representations, Warranties and Covenenants” and “Events of Default and Remedies”. 3 3 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 14) The Merchant further agreed that in the event of any action or circumstance constituting a breach or default of any of the foregoing, the entire outstanding balance owed by the Merchant at the time of such breach or default would become immediately due and payable to Plaintiff. See, Ex. A, “Events of Default and Remedies”. 15) The Guarantor personally guaranteed the Merchant’s representations in the Agreement, the Merchant’s performance under the Agreement, and that the Merchant would not breach the Agreement. See, Ex. A, “Guaranty of Performance”. 16) The Plaintiff timely performed under the Agreement by causing the deposit of the “Purchase Price” of $35,000.00, less applicable fees in accordance with the Agreement, to the Merchant’s business account in accordance with the Defendants’ instructions. See, Ex. C. 17) The Merchant performed under the Agreement on the dates and in the amounts as set forth in the Transaction/Remittance History, during which time Merchant remitted to the Plaintiff $24,734.88 of the Purchased Amount of $50,750.00, leaving a principal balance of $26,015.12, along with NSF Fees in the amount of $70.00, a Default Fee in the amount of $3,000.00, and Attorney’s Fees in the amount of $8,266.50, making the total balance due and owing $37,351.62. See, Ex. B and See also, Ex. A, “Attorney’s Fees” and “The Fee Structure”. 18) The Agreement provides that “[t]he occurrence of any of the following events shall constitute an ‘Event of Default’ hereunder a) Merchant or Guarantor(s) shall violate any term or covenant in this Agreement b) Any representation or warranty 1 by Merchant or Guarantor(s) in this Agreement 1 See, Ex. A, “Representations, Warranties and Covenants”. 4 4 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 shall prove to have been incorrect, false or misleading in any material respect when made c) the sending of notice of termination by Merchant or verbally notifying [Plaintiff] of its intent to breach this Agreement d) the Merchant fails to request a Reconciliation 2 or Adjustments 3 to the Remittance pursuant to Paragraphs .3 .4 (as appropriate) within 1 business day of a Merchant's Remittance returned of insufficient funds in the Account such that the ACH of the Remittance amount was not be honored by Merchant's bank e) Merchant fails to provide its bank statements, and/or month to date bank activity, accounts receivable reports, and/or bank login information within two (2) business days of a request by [Plaintiff], or the merchant changes their bank login information (which was previously-provided to [Plaintiff]) without providing [Plaintiff] with the updated login information in writing within 48 hours of such update 4 f) Merchant shall voluntarily transfer or sell all or substantially all of its assets g) Merchant shall make or send notice of any intended bulk sale or transfer by Merchant 2 See, Ex. A, “Reconciliation”. 3 See, Ex. A, “Adjustments to Remittance”. 4 See, Ex. A, “Financial Condition”. 5 5 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 h) Merchant shall use multiple depository accounts 5 without the prior written consent of [Plaintiff] or takes any other action that intentionally interferes 6 with or prevents [Plaintiff] from receiving the Purchased Amount in accordance with the terms of this Agreement i) Merchant shall enter into any financing agreements with any other party including but not limited to: Loans, Merchant Cash Advances, Receivables financing, or any other agreement that will increase the total debt owed by Merchant to any other party 7 j) Merchant shall change its depositing account without the prior written consent of [Plaintiff] k) Merchant shall close its depositing account used for ACH debits without the prior written consent of [Plaintiff] l) Merchant's bank returns a code other than NSF cutting [Plaintiff] from its collections m) Merchant or any Owner/ Guarantor(s), directly or indirectly, causes to be formed a new entity or otherwise becomes associated with any new or existing entity, which operates a business similar to or competitive with that of Merchant 5 “[Plaintiff] will debit the Remittance each business day from only one depositing bank account, which account must be acceptable to, and pre-approved by, [Plaintiff] (the “Account”) into which Merchant and Merchant’s customers shall remit the Receipts from each Transaction, until such time as [Plaintiff] receives payment in full of the Purchased Amount.” See, Ex. A, “Merchant Information”. 6 See, Ex. A, “Use of Funds” and “Unencumbered Receipts”. 7 This practice is colloquially known as “stacking”. 6 6 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 or n) Merchant shall default under any of the terms, covenants and conditions of any other agreement with [Plaintiff].” See, Ex. A, “Events of Default”. 19) The Merchant breached the Agreement on 10/06/2023, when Plaintiff was deprived of the Remittance due and the Merchant’s bank returned the code of “R01 – Insufficient Funds” and the Merchant thereafter failed to timely request a Reconciliation or Adjustment to its Remittance. The Merchant is liable for the occurrence of the following Event of Default: “the Merchant fails to request a Reconciliation 8 or Adjustments 9 to the Remittance pursuant to Paragraphs .3 .4 (as appropriate) within 1 business day of a Merchant's Remittance returned of insufficient funds in the Account such that the ACH of the Remittance amount was not be honored by Merchant's bank”. See, Ex. A, “Events of Default”, paragraph 3.1(d), See also, Ex. B, and See also, Affidavit in Support of Motion. 20) The Plaintiff’s attempts to debit the amount to which it was entitled from Merchant’s designated account resulted in an ACH debit rejection notice. See, Ex. B. ARGUMENT DEFENDANTS HAVE BREACHED THE REVENUE PURCHASE AGREEMENT 21) Based on the accompanying affidavit(s), exhibits, statement of material facts, and all pleadings and proceedings heretofore had herein, there are no material issues of fact as to Defendants’ breach. More specifically, the Merchant breached the Agreement, the Guarantor 8 See, Ex. A, “Reconciliation”. 9 See, Ex. A, “Adjustments to Remittance”. 7 7 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 breached the guarantee, and the Plaintiff suffered damages as a direct and proximate result. As such, the Plaintiff’s motion should be granted in its entirety. 22) “It is well-established that summary judgment should be granted only if there are no material and triable issues of fact (internal citations omitted).” See, Hantz v. Fishman, 155 A.D.2d 415, 547 N.Y.S.2d 350 (2nd Dept. 1989). 23) Once the movant has tendered evidentiary proof in admissible form sufficient to warrant the Court in directing judgment as a matter of law, the burden shifts to the opposing party to “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (emphasis added) (internal citations omitted).” See, Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). 24) In deciding a motion for summary judgment, the Court must ascertain whether any genuine issues of fact exist in the opposing party’s proofs as “laid bare by the parties’ submission of affidavits based on personal knowledge and documentary evidence, rather than in their conclusory or speculative averments.” See, Behar v. Ordover, 92 A.D.2d 557, 459 N.Y.S.2d 304 (2nd Dept. 1983). 25) As no party in opposition can rebut the Plaintiff’s prima facie entitlement to judgment as a matter of law, it is respectfully submitted that the Plaintiff’s motion should be granted in its entirety. 8 8 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 Merchant is Liable to Plaintiff for Breach of Contract 26) “The essential elements of a breach of contract cause of action are ‘the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach’ (internal citations omitted).” See, Canzona v. Atanasio, 118 A.D.3d 837, 989 N.Y.S.2d 44 (2nd Dept. 2014). 27) “The ‘clearest of contract terms’ are generally to be found in a written agreement executed by contracting parties, which ‘when unambiguous on its face must be enforced according to the plain meaning’ (internal citations omitted).” See, Zheng v. City of New York, 19 N.Y.3d 556, 973 N.E.2d 711, 950 N.Y.S.2d 301 (2012). 28) In the instant matter, the Plaintiff has established the existence of the Agreement, its performance under the Agreement, the Defendants’ breach thereof, and monetary damages incurred by the Plaintiff as a direct and proximate result of the breach. As such, it is respectfully submitted that the Plaintiff is entitled to judgment as a matter of law. 29) Pursuant to CPLR 5001(a), the Plaintiff is entitled to prejudgment interest at the statutory rate as provided in CPLR 5004 on its breach of contract cause of action running from the date of the breach. See, Sokolik v. Pateman, 114 A.D.3d 839, 981 N.Y.S.2d 111 (2nd Dept. 2014). Here, the breach occurred on 10/06/2023 and the Plaintiff is therefore entitled to prejudgment interest from that date of breach to the date of entry of judgment. 30) Pursuant to CPLR 5003, “[e]very money judgment shall bear interest from the date of its entry.” As such, the Plaintiff is entitled to post-judgment interest at the statutory rate as provided in CPLR 5004 from the date of entry of judgment until such time as the judgment is paid, satisfied, 9 9 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 or otherwise resolved in full. 31) Based on the foregoing, it is respectfully submitted that the Plaintiff is entitled to judgment as a matter of law against the Merchant on its breach of contract cause of action in the amount of $37,351.62, together with prejudgment interest from the date of the breach, plus costs, disbursements, and fees. Guarantor is Liable to Plaintiff for Breach of the Personal Guaranty 32) The “Guaranty of Performance” knowingly and voluntarily agreed to by the Guarantor clearly and unequivocally provides that the Guarantor is jointly and severally liable to the Plaintiff under the terms of the Agreement for any breach thereof. See, Ex. A, “Guaranty of Performance”. 33) As set forth in herein, as well as the accompanying affidavit(s), exhibits, statement of material facts, memorandum, and all pleadings and proceedings heretofore had herein, the Merchant failed to perform in accordance with the Agreement, causing damages to the Plaintiff. 34) The Guarantor is therefore jointly and severally liable to the Plaintiff for the total damages incurred, to wit, the sum of $37,351.62, together with prejudgment interest from the date of the breach, plus costs, disbursements, and fees and it is respectfully submitted that this motion should be granted as against the Guarantor and judgment entered accordingly. CONCLUSION 35) Based on the foregoing, it is respectfully submitted that the Plaintiff’s motion should be granted in its entirety, granting summary judgment in favor of the Plaintiff and against the Defendants, jointly and severally, in the amount of $37,351.62, together with prejudgment interest from the date of the breach, plus costs, disbursements, and fees. 10 10 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 WHEREFORE, Plaintiff respectfully requests that the instant motion be granted in its entirety, together with such other, further, and different relief as may be just and proper. Dated: New York, New York January 16, 2024 /s/ Adam Nichols, Esq. Adam Nichols, Esq. Piekarski Law PLLC Attorneys for Plaintiff 1 Whitehall St, 2nd Fl New York, New York 10004 Phone: (646) 968-8203 11 11 of 12 FILED: ROCKLAND COUNTY CLERK 01/16/2024 10:12 AM INDEX NO. 035349/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/16/2024 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 202.8-b Supreme Court of the State of New York I, Adam Nichols, an attorney duly admitted to practice law before the courts of the State of New York, hereby certifies that this Affirmation complies with the word count limit set forth in 202 NYCRR § 202.8-b. The total number of words in the forgoing affirmation in support, exclusive of the caption and signature block, is 2500. In preparing this certification, I have relied on the word count feature of Microsoft Word. Dated: New York, New York January 16, 2024 /s/ Adam Nichols, Esq. Adam Nichols, Esq. Piekarski Law PLLC Attorneys for Plaintiff 1 Whitehall St, 2nd Fl New York NY 10004 (646) 968-8203 12 12 of 12