Preview
INDEX NO. E2023006654
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3618429
Book Page CIVIL
Return To: No. Pages: 7
Chery A. Porter
545 Hall of Justice Instrument: ORDER
Rochester, NY 14617
Control #: 202310270709
Index #: E2023006654
Date: 10/27/2023
EBF HOLDINGS, LLC Time: 12:32:01 PM
JULIO CESAR LONDONO
LONDONO, JULIO CESAR
Total Fees Paid: $0.00
Employee: CW
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING — THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO.
MONROE COUNTY CLERK
MMI
FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM IND&&& NOE 2623026006654
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023
At a Term of the Supreme Court, in
and for the County of Monroe, Hall
of Justice, Rochester, New York.
PRESENT; HON. SAM L.. VALLERIANI
Supreme Court Justice
SUPREME COURT
STATE OF NEW YORK MONROE COUNTY
EBF HOLDINGS, LLC D/B/A EVEREST
BUSINESS FUNDING,,
Plaintiff; DECISION
-Vvs-
INDEX No.: E2023006654
JULIO.CESAR LONDONO D/B/A
DISTRIBUIDORA DEL VALLE
and
JULIO CESAR LONDONO,
Defendants.
APPEARANCES:
Attorney for Plaintiff : Ariel Bouskila, Esq.
80 Broad St., Suite 3303
New York, NY 10004
Attorney for Defendants: Dominick R. Dale, Esq.
7002 Nansen Street
Forest Hills, NY 11375
Sam L. Valleriani, J.
Plaintiff filed a motion seeking dismissal of defendants’ counter-claims, pursuant to
CPLR § 3211(a)(1) based:on the documentary evidence and.CPLR 3211(a)(7) failure to state a
cause of action.
Defendants oppose the motion claiming that discovery is necessary, and that plaintiff has
not sufficiently verified the documentary evidence, thus failing to meet its prima facie burden to
een —
INDEXN8 E 2823008095654
FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023
dismiss the counterclaims.
Plaintiff in reply submits that defendants have not opposéd the motion regarding the
counterclaims for unjust enrichment and monies had monies received, thus those counterclaims
must be dismissed. Since defendants failed to oppose the motion regarding those two
counterclaims, the motion to dismiss is granted (see Hermitage Ins. Co. V Trance Nite Club, Inc.,
40 AD3d 1032 [2d Dept..2007)).
On March 1, 2023, the parties entered into a document identified as a revenue based
financing agreement whereby plaintiff purchased from defendant merchant 15 percent of the
defendants’ total future-accounts receivables until the plaintiff received $51,100.00 for the cost or
payment of $35,000.00 from plaintiff to defendants (plaintiff's Ex. A purchase agreement
NYSCEF Dkt 2). Under the agreement, the parties agreed to an initial daily payment of $352.41
until the full amount was paid which could be changed and adjusted based upon the merchant’s
revenue (see id.). Defendant Londono personally guaranteed payment (see id.).
Plaintiff alleges that they funded the purchase agreement as agreed and defendants made
payments in the amount of $5,286.15 before defaulting and owing the remaining balance of
$45,813.85 (complaint). Defendants owe additional costs fora UCC fee in the amount of
$250.00 and NSF fees in the amount of $140.00 (see id.).
Defendants filed an answer with 33 affirmative defenses and 7 counterclaims on July 1,
2023. The counterclaims allege.common law fraud, negligent-and intentional misrepresentation,
unjust enrichment, monies had and received, breach of good faith and fair dealing-and breach of
fiduciary duty.
Initially, addressing defendants ‘claim that discovery is required to oppose the motion,
they: have failed to establish that the discovery is in the exclusive knowledge of plaintiff, “that the
nner
FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM INDEXN8 E 2823008095654
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023
claims in opposition are supported by something other than mere hope and conjecture, and that
the party has.at least made some attempt to discovery facts at variance with the moving party’s
proof “ (Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557 [I* Dept
2007], [internal citations omitted] ; see also Resetarits Construction v Olmsted, 118 AD3d 1454
[4" Dept 2014]). Here, the basis of plaintiff's motion is based upon the documentary evidence,
mainly the merchant agreement, which contrary to defendants assertion is properly before the
court (affidavit of Chad Johnson dated July 5, 2023). Other than generally claiming that the
agreement was unfair and plaintiff was overreaching, defendants have failed to assert what other
evidentiary discovery necessary to oppose the motion is in the exclusive control of the plaintiff.
Plaintiff seeks dismissal of the counterclaims pursuant to CPLR §3211(a)(1) and (a)(7).
CPLR § 3211(a)(1) provides that a party may move to dismiss a claim against them based:on “a
defense found upon documentary evidence” (see CPLR 3211 [a][1]). “Ona motion to dismiss
pursuant to CPLR. 3211, pleadings are to be liberally construed... The court is to accept the facts
as alleged in the [pleading] as true ... [and] accord [the proponent of the pleading] the benefit of
every possible favorable inference” (Baumann Realtors, Inc. v First Columbia Century- 30, 113
AD3d 1091 [4 Dept 2014], [internal quotation marks:and citations omitted]). For dismissal, the
documentary evidence must resolve “all factual issues as a matter of law; and conclusively
dispose(s] of the [plaintiff's] claim[s]” (see id.,.internal quotation marks and citations omitted).
On-:a motion to dismiss pursuant to CPLR § 3211(a)(7) the answer with counterclaims
must be given every favorable inference and the allegations in the pleading are deemed to be true
(see. Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992]), When. considering such a
motion, it is the task of the court to determine whether, “accepting as true the factual averments
of the ¢omplaint [counterclaim], plaintiff [defendant] can succeed upon any reasonable view of
en ere
INDEXN8 E 2823008095654
FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023
the facts stated” (Campaign for Fiscal Equity, Inc. y State of New York,86 NY2d 307, 318
[1995][internal citations and quotations omitted]). If the court determines “that plaintiffs
[defendants] are entitled to relief on any reasonable view of the facts stated,” the court’s inquiry
is complete, and the complaint is deemed legally sufficient (id.). “Modern pleading rules focus
upon whether the pleader has a cause of action, not whether he has properly stated one, and in
imaking that determination, accompanying affidavits may be referred to for the limited purpose of
remedying any defects in the pleadings” (Embee Advice Establishment v Holtmann, Wise &
Shepard, 191 AD2d 194.(1* Dept 1993); see also Jennings-Purnell v Jennings, 107 AD3d 513
(1* Dept 2013). A party moving to dismiss “must establish conclusively that plaintiff
[defendant] has no cause of action . . . and that in light of the evidence presented no significant
dispute.exists” (Kaufman v: International Bus. Machs. Corp., 97 AD2d 925, 926-27 (3d Dept,
1983), aff'd 61 NY2d 930 (1984) (internal citation and quotation omitted).
Here, plaintiff has submitted a standard Revenue Purchase Agreement which, contrary to
defendants’ stated contentions, these agreements have been upheld by the Appellate Courts
throughout the state as valid merchant agreements and not business loans (see Principis Capital v
1 Do Inc.,201 AD3d 752 [2d Dept 2022]; See also Kennard Law P.C. v High Speed Capital
ELC, 199 AD3d 1406 [4" Dept 2021]; Champion Auto Sales, LLC v Pearl Beta Funding, LLC,
159 AD3d'507 [1* Dept 2018]; AH Wines, Inc. V C6 Capital Funding LLC, 199 AD3d 1328 [4"
Dept 2021]).'
Disinissal of Counterclaims
Plaintiff seeks dismissal of defendants’ counterclaims for fraud and negligent and
intentional misrepresentation on the basis that neither counterclaim has been plead properly and
' Plaintiff's Ex, A standard Revenue Purchase. Agreement.
ete et on
INDEXN8 E 2823008095654
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023
with specificity as required by CPLR § 3016(b). “The elements of a cause of action for fraud
require.a material misrepresentation of a fact, knowledge of its falsity,.an intent to induce
reliance, justifiable reliance by the plaintiff [defendant] and damages” (Leonardi v County of
Cayuga, 103. AD3d 1232 [4 Dept 2013] [internal citations and quotation marks omitted]). The
claims that defendants would not have entered into the purchase agreement if they understood
what they were agreeing to, that misrepresentations were made or that they were under economic
distress are insufficient to raise a triable issue of fact in this case: Claimed misrepresentations
inducing a party to enter into an agreement will not provide a defense where the disputed
provisions are clearly set out in the agreement, and.a party by use of their own ordinary
intelligence can determine the quality or truth of the alleged misrepresentation (see Karsanow v.
Kuehlewein, 232 A.D.2d 458, 459 [2d Dept 1996]). A party, especially a sophisticated business
owner, will not be.excused for their failure to read or understand an agreement (see Sofio v
Hughes, 162 AD2d 518 [2d Dept 1990]). Even accepting defendants’ implicit claims of
unconscionability, there is no proof that high pressure sales techniques ordeceptive language and
inequality of bargaining power was employed to coerce defendants into signing the agreement
(see Molino v Sagamore, 105 AD3d 922 [ 2d Dept 2013]). Defendants* claim that plaintiff failed
to disclose to the merchant that it was selling 100% of the receivables is belied by the plain terms
of the agreement signed by defendants. The agreement clearly states that it is a revenue: based
finaricing agreement with a specific amount of receivables purchased, arid the price paid.
Moreover, defendants had an understanding of these merchant agreements as they had’ entered
intoa prior revenue based financing agreement which was paid off by this purchaser.
Similarly, defendants” claims of intentional and:negligent misrepresentation fail as the
arm’s length commercial sale of accounts receivables doés not constitute a confidential or
een semen
FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM INDEXN8 E 2823008095654
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023
fiduciary relationship between the parties to support the claim (see River Glen Assoc. v Merrill
Lynch Credit Corp., 295 Ad2d 274 [1* Dept 2002]). Lastly, defendants’ counterclaim for breach
of implied covenant of good faith and faire dealing can not be maintained since it is based on the
same conduct as counterclaim for plaintiff's alleged breach of contract (see MBIA Ins. Corp. v
Merrill Lynch, 81 AD3d 419, 420 [1* Dept 2012]). Lastly, defendants’ claim that plaintiff
breached the contract is not supported by the only proof in the record. The proof establishes that
plaintiff funded the contract, and defendants breached the agreement when they failed to honor
the agreement and make payments.
Accordingly, defendants’ counter-claims are dismissed (see Capytal v South Coast
Vapor Co. et al., Sup Ct, Ulster County, May 12, 2023, Graff, J., Index No. EF2022-2525).
This constitutes the decision of the court. Any relief not specifically granted is denied.
Plaintiff shall submit the order Via NYSCEF within five days.
|
Dated: }
Jofo7 3 HON. SAM L. VALLERIANI
Supreme Court Justice
Preview
INDEX NO. E2023006654 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3618429 Book Page CIVIL Return To: No. Pages: 7 Chery A. Porter 545 Hall of Justice Instrument: ORDER Rochester, NY 14617 Control #: 202310270709 Index #: E2023006654 Date: 10/27/2023 EBF HOLDINGS, LLC Time: 12:32:01 PM JULIO CESAR LONDONO LONDONO, JULIO CESAR Total Fees Paid: $0.00 Employee: CW State of New York MONROE COUNTY CLERK’S OFFICE WARNING — THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO. MONROE COUNTY CLERK MMI FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM IND&&& NOE 2623026006654 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023 At a Term of the Supreme Court, in and for the County of Monroe, Hall of Justice, Rochester, New York. PRESENT; HON. SAM L.. VALLERIANI Supreme Court Justice SUPREME COURT STATE OF NEW YORK MONROE COUNTY EBF HOLDINGS, LLC D/B/A EVEREST BUSINESS FUNDING,, Plaintiff; DECISION -Vvs- INDEX No.: E2023006654 JULIO.CESAR LONDONO D/B/A DISTRIBUIDORA DEL VALLE and JULIO CESAR LONDONO, Defendants. APPEARANCES: Attorney for Plaintiff : Ariel Bouskila, Esq. 80 Broad St., Suite 3303 New York, NY 10004 Attorney for Defendants: Dominick R. Dale, Esq. 7002 Nansen Street Forest Hills, NY 11375 Sam L. Valleriani, J. Plaintiff filed a motion seeking dismissal of defendants’ counter-claims, pursuant to CPLR § 3211(a)(1) based:on the documentary evidence and.CPLR 3211(a)(7) failure to state a cause of action. Defendants oppose the motion claiming that discovery is necessary, and that plaintiff has not sufficiently verified the documentary evidence, thus failing to meet its prima facie burden to een — INDEXN8 E 2823008095654 FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023 dismiss the counterclaims. Plaintiff in reply submits that defendants have not opposéd the motion regarding the counterclaims for unjust enrichment and monies had monies received, thus those counterclaims must be dismissed. Since defendants failed to oppose the motion regarding those two counterclaims, the motion to dismiss is granted (see Hermitage Ins. Co. V Trance Nite Club, Inc., 40 AD3d 1032 [2d Dept..2007)). On March 1, 2023, the parties entered into a document identified as a revenue based financing agreement whereby plaintiff purchased from defendant merchant 15 percent of the defendants’ total future-accounts receivables until the plaintiff received $51,100.00 for the cost or payment of $35,000.00 from plaintiff to defendants (plaintiff's Ex. A purchase agreement NYSCEF Dkt 2). Under the agreement, the parties agreed to an initial daily payment of $352.41 until the full amount was paid which could be changed and adjusted based upon the merchant’s revenue (see id.). Defendant Londono personally guaranteed payment (see id.). Plaintiff alleges that they funded the purchase agreement as agreed and defendants made payments in the amount of $5,286.15 before defaulting and owing the remaining balance of $45,813.85 (complaint). Defendants owe additional costs fora UCC fee in the amount of $250.00 and NSF fees in the amount of $140.00 (see id.). Defendants filed an answer with 33 affirmative defenses and 7 counterclaims on July 1, 2023. The counterclaims allege.common law fraud, negligent-and intentional misrepresentation, unjust enrichment, monies had and received, breach of good faith and fair dealing-and breach of fiduciary duty. Initially, addressing defendants ‘claim that discovery is required to oppose the motion, they: have failed to establish that the discovery is in the exclusive knowledge of plaintiff, “that the nner FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM INDEXN8 E 2823008095654 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023 claims in opposition are supported by something other than mere hope and conjecture, and that the party has.at least made some attempt to discovery facts at variance with the moving party’s proof “ (Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557 [I* Dept 2007], [internal citations omitted] ; see also Resetarits Construction v Olmsted, 118 AD3d 1454 [4" Dept 2014]). Here, the basis of plaintiff's motion is based upon the documentary evidence, mainly the merchant agreement, which contrary to defendants assertion is properly before the court (affidavit of Chad Johnson dated July 5, 2023). Other than generally claiming that the agreement was unfair and plaintiff was overreaching, defendants have failed to assert what other evidentiary discovery necessary to oppose the motion is in the exclusive control of the plaintiff. Plaintiff seeks dismissal of the counterclaims pursuant to CPLR §3211(a)(1) and (a)(7). CPLR § 3211(a)(1) provides that a party may move to dismiss a claim against them based:on “a defense found upon documentary evidence” (see CPLR 3211 [a][1]). “Ona motion to dismiss pursuant to CPLR. 3211, pleadings are to be liberally construed... The court is to accept the facts as alleged in the [pleading] as true ... [and] accord [the proponent of the pleading] the benefit of every possible favorable inference” (Baumann Realtors, Inc. v First Columbia Century- 30, 113 AD3d 1091 [4 Dept 2014], [internal quotation marks:and citations omitted]). For dismissal, the documentary evidence must resolve “all factual issues as a matter of law; and conclusively dispose(s] of the [plaintiff's] claim[s]” (see id.,.internal quotation marks and citations omitted). On-:a motion to dismiss pursuant to CPLR § 3211(a)(7) the answer with counterclaims must be given every favorable inference and the allegations in the pleading are deemed to be true (see. Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992]), When. considering such a motion, it is the task of the court to determine whether, “accepting as true the factual averments of the ¢omplaint [counterclaim], plaintiff [defendant] can succeed upon any reasonable view of en ere INDEXN8 E 2823008095654 FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023 the facts stated” (Campaign for Fiscal Equity, Inc. y State of New York,86 NY2d 307, 318 [1995][internal citations and quotations omitted]). If the court determines “that plaintiffs [defendants] are entitled to relief on any reasonable view of the facts stated,” the court’s inquiry is complete, and the complaint is deemed legally sufficient (id.). “Modern pleading rules focus upon whether the pleader has a cause of action, not whether he has properly stated one, and in imaking that determination, accompanying affidavits may be referred to for the limited purpose of remedying any defects in the pleadings” (Embee Advice Establishment v Holtmann, Wise & Shepard, 191 AD2d 194.(1* Dept 1993); see also Jennings-Purnell v Jennings, 107 AD3d 513 (1* Dept 2013). A party moving to dismiss “must establish conclusively that plaintiff [defendant] has no cause of action . . . and that in light of the evidence presented no significant dispute.exists” (Kaufman v: International Bus. Machs. Corp., 97 AD2d 925, 926-27 (3d Dept, 1983), aff'd 61 NY2d 930 (1984) (internal citation and quotation omitted). Here, plaintiff has submitted a standard Revenue Purchase Agreement which, contrary to defendants’ stated contentions, these agreements have been upheld by the Appellate Courts throughout the state as valid merchant agreements and not business loans (see Principis Capital v 1 Do Inc.,201 AD3d 752 [2d Dept 2022]; See also Kennard Law P.C. v High Speed Capital ELC, 199 AD3d 1406 [4" Dept 2021]; Champion Auto Sales, LLC v Pearl Beta Funding, LLC, 159 AD3d'507 [1* Dept 2018]; AH Wines, Inc. V C6 Capital Funding LLC, 199 AD3d 1328 [4" Dept 2021]).' Disinissal of Counterclaims Plaintiff seeks dismissal of defendants’ counterclaims for fraud and negligent and intentional misrepresentation on the basis that neither counterclaim has been plead properly and ' Plaintiff's Ex, A standard Revenue Purchase. Agreement. ete et on INDEXN8 E 2823008095654 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023 with specificity as required by CPLR § 3016(b). “The elements of a cause of action for fraud require.a material misrepresentation of a fact, knowledge of its falsity,.an intent to induce reliance, justifiable reliance by the plaintiff [defendant] and damages” (Leonardi v County of Cayuga, 103. AD3d 1232 [4 Dept 2013] [internal citations and quotation marks omitted]). The claims that defendants would not have entered into the purchase agreement if they understood what they were agreeing to, that misrepresentations were made or that they were under economic distress are insufficient to raise a triable issue of fact in this case: Claimed misrepresentations inducing a party to enter into an agreement will not provide a defense where the disputed provisions are clearly set out in the agreement, and.a party by use of their own ordinary intelligence can determine the quality or truth of the alleged misrepresentation (see Karsanow v. Kuehlewein, 232 A.D.2d 458, 459 [2d Dept 1996]). A party, especially a sophisticated business owner, will not be.excused for their failure to read or understand an agreement (see Sofio v Hughes, 162 AD2d 518 [2d Dept 1990]). Even accepting defendants’ implicit claims of unconscionability, there is no proof that high pressure sales techniques ordeceptive language and inequality of bargaining power was employed to coerce defendants into signing the agreement (see Molino v Sagamore, 105 AD3d 922 [ 2d Dept 2013]). Defendants* claim that plaintiff failed to disclose to the merchant that it was selling 100% of the receivables is belied by the plain terms of the agreement signed by defendants. The agreement clearly states that it is a revenue: based finaricing agreement with a specific amount of receivables purchased, arid the price paid. Moreover, defendants had an understanding of these merchant agreements as they had’ entered intoa prior revenue based financing agreement which was paid off by this purchaser. Similarly, defendants” claims of intentional and:negligent misrepresentation fail as the arm’s length commercial sale of accounts receivables doés not constitute a confidential or een semen FREER?" MONROE COUNTY CLERK 10/27/2023 12:45 PM INDEXN8 E 2823008095654 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/27/2023 fiduciary relationship between the parties to support the claim (see River Glen Assoc. v Merrill Lynch Credit Corp., 295 Ad2d 274 [1* Dept 2002]). Lastly, defendants’ counterclaim for breach of implied covenant of good faith and faire dealing can not be maintained since it is based on the same conduct as counterclaim for plaintiff's alleged breach of contract (see MBIA Ins. Corp. v Merrill Lynch, 81 AD3d 419, 420 [1* Dept 2012]). Lastly, defendants’ claim that plaintiff breached the contract is not supported by the only proof in the record. The proof establishes that plaintiff funded the contract, and defendants breached the agreement when they failed to honor the agreement and make payments. Accordingly, defendants’ counter-claims are dismissed (see Capytal v South Coast Vapor Co. et al., Sup Ct, Ulster County, May 12, 2023, Graff, J., Index No. EF2022-2525). This constitutes the decision of the court. Any relief not specifically granted is denied. Plaintiff shall submit the order Via NYSCEF within five days. | Dated: } Jofo7 3 HON. SAM L. VALLERIANI Supreme Court Justice