Motion for Writ in Ebf Holdings, Llc D/B/A EVEREST BUSINESS FUNDING v. Julio Cesar Londono D/B/A DISTRIBUIDORA DEL VALLE, Julio Cesar Londono| Trellis.Law

On June 23, 2023 a Motion-Secondary was filed involving a dispute between Ebf Holdings, Llc D B A Everest Business Funding, and Julio Cesar Londono, Julio Cesar Londono D B A Distribuidora Del Valle, for Other Matters - Contract - Other in the District Court of Monroe County.

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FILED: MONROE COUNTY CLERK 10/12/2023 12:03 AM INDEX NO. E2023006654
NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 10/12/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt # 3599313

Book Page CIVIL

Return To: No. Pages: 11
DOMINICK R. DALE
7002 Nansen Street Instrument: AFFIRMATION IN OPPOSITION
New YorkForest Hills, NY 11375
Control #: 202310120002
Index #: E2023006654

Date: 10/12/2023

EBF HOLDINGS, LLC Time: 12:10:50 AM

JULIO CESAR LONDONO
LONDONO, JULIO CESAR

Total Fees Paid: $0.00

Employee:

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

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
--------------------------------------------------------------------X
EBF HOLDINGS, LLC D/B/A EVEREST BUSINESS Index No.: E2023006654
FUNDING
MEMORANDUM OF
Plaintiff, LAW IN OPPOSITION

-against-

JULIO CESAR LONDONO D/B/A DISTRIBUIDORA
DEL
VALLE AND JULIO CESAR LONDONO,

Defendant.
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Dominick Dale, an attorney, duly admitted to practice in the court of New York State,

pursuant to CPLR 2106, affirms the following under penalty of perjury based upon a review of the

file and upon information and belief:

1. I am the principal of Law Office of DOMINICK DALE, ESQ. attorney for

DISTRIBUIDORA DEL VALLE et al in the above-captioned action. I make this statement based

on my personal knowledge of the facts set forth herein.

2. This memorandum of law is submitted in opposition to Plaintiff EBF HOLDINGS, LLC

D/B/A EVEREST BUSINESS FUNDING’s motion seeing an order pursuant to CPLR 3221(a)(1)

and (a)(7) dismissing the Counterclaims based upon documentary evidence and for failure to state

a cause of action upon which relief may be granted, in their entirety and granting such other and

further relief as this court deems just and proper.

PRELIMINARY STATEMENT

3. On or about March 1, 2023, the Plaintiff fraudulently and negligently induced the defendant

into entering a financial transaction. During the course of the transaction the plaintiff acted in bad

faith by breaching its duty of good faith and fiduciary duty. Based upon the facts, the defendant

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has several caused of action against the defendant.

4. Counter-defendant’s motion must be denied because 1) it fails to meet its prima facie

burden and 2) all allegations have been properly pled.

LEGAL STANDARD

A. CPLR 3211(a)(1)

5. In order to prevail on a CPLR 3211(a)(1) motion, the moving party must show that the

documentary evidence conclusively refutes Plaintiff’s allegations. AG Capital Funding Partners,

L.P. v. State St. Bank & Tr. Co., 5 N.Y.3d 582, 590–91 (2005).

“To qualify as documentary evidence, the evidence ‘must be unambiguous and of
undisputed authenticity’” (Matter of Koegel, 160 A.D.3d 11, 20–21, 70 N.Y.S.3d 540,
quoting Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569). “[J]udicial
records, as well as documents reflecting out-of-court transactions such as mortgages,
deeds, contracts, and any other papers, the contents of which are essentially undeniable,
would qualify as documentary evidence in the proper case” (Matter of Koegel, 160 A.D.3d
at 21, 70 N.Y.S.3d 540 [internal quotation marks omitted]). However, affidavits are not
considered documentary evidence (see Hartnagel v. FTW Contr., 147 A.D.3d at 820, 47
N.Y.S.3d 96; Fontanetta v. John Doe 1, 73 A.D.3d at 86, 898 N.Y.S.2d 569).

Bd. of Managers of 285 Driggs Ave. Condo. v. 285 Driggs Ave., LLC, 173 A.D.3d 821, 822 (2d

Dep’t 2019); see also Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807 (2d Dep’t 2017) (“An

affidavit is not documentary evidence because its contents can be controverted by other evidence,

such as another affidavit.”); Kempf v. Magida, 37 A.D.3d 763, 765 (2d Dep’t 2007) (“The

defendant’s affidavit did not conclusively establish that the plaintiffs had no cause of action. It

merely disputed some of the factual allegations of the complaint.”)

6. Here, as a matter of law, the Counter-Defendant’s affidavit is not documentary evidence.

Counter-Defendant’s affidavit can be disputed by other evidence, including a competing affidavit

offered by the counter-plaintiff. The affidavit only demonstrates that the allegation of a financial

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transaction occurred between the parties. All the remaining statements in the Counter-Defendant’s

affidavit are disputed and disputable. Counter-Defendant’s attempt to lay the foundation for the

admission of the agreement is not enough for this court to grant dismissal pursuant to CPLR

3211(a)(1).

7. Even if the court finds that this affidavit is documentary evidence, it does not lay the proper

foundation for the admission of the agreement. There is no testimony regarding the witness's basis

for knowledge.

8. Moreover, the witness does not demonstrate personal knowledge as to plaintiff’s business

practices and procedures. As such, the affidavit has no probative value

9. In short, the Counter-Defendant’s quantum of proof does not “utterly refute” the allegations

in the counter-plaintiff’s counterclaims. [ Phillips v. Taco Bell Corp., 152 A.D.3d 806, 60

N.Y.S.3d 67 (2017)] As such, this portion of the motion should be denied.

B. CPLR 3211(a)(7)

10. On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action,

the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading

to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only

whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d

83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Scialdone v. Stepping Stones Assoc., L.P., 148 A.D.3d

953, 50 N.Y.S.3d 413). Thus, “a motion to dismiss made pursuant to CPLR 3211(a)(7) will fail if,

taking all facts alleged as true and according them every possible inference favorable to the

plaintiff, the complaint states in some recognizable form any cause of action known to our law”

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(Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827

N.Y.S.2d 231).

11. While a court is permitted to consider evidentiary material submitted by a defendant in

support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see Sokol v. Leader, 74 A.D.3d 1180,

1181, 904 N.Y.S.2d 153), “affidavits submitted by a defendant will almost never warrant dismissal

under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action”

Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807–08, 60 N.Y.S.3d 67, 69 (2017)

12. Here, the court should be aware that the counter-plaintiff does not assert usury as a

counterclaim. In fact, usury can only be used as an affirmative defense.

13. The counter-defendant clearly did not read the counter-plaintiff’s pleading. In its papers,

the counter-defendant argues that this agreement is not a loan and thus not usurious from pages

11-19. This section of counter-defendant’s motion should be disregarded by this honorable court.

The counter-defendant should pay attention. Furthermore, the counter-defendant is not able to

“interpret” the allegations in counter-plaintiff’s counterclaims. The counter-plaintiff drafted the

counter-claims. Thus, the counter-plaintiff is the only one to say that the counter-claims do not

address the usury affirmative defense.

PLAINTIFF FAILED TO ESTABLISH ITS PRIMA FACIE ENTITLED TO DISMISSAL

14. As to all counterclaims, the counter-defendant has not established its prima facie burden as

a matter of law. The counter-defendant’s use of an affidavit does not warrant dismissal because it

does not directly and specifically refute the counter-plaintiff’s counterclaims. Thus, the counter-

defendant only relies upon its attorney affirmation. It is well established that an attorney

affirmation standing alone is not enough to sustain a prima facie burden to dismiss pursuant to

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CPLR 3211(a)(7)

COUNTER-CLAIMS FOR MATERIAL MISREPRESENTATION BASED ON FRAUD,
INTENTIONAL AND NEGLIGENCE HAVE BEEN PROPERLY PLEAD

Fraudulent/intentional misrepresentation

15. In Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178, 944 N.E.2d 1104, 1108

(2011), the Court of Appeals stated the following:

Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege “a
misrepresentation or a material omission of fact which was false and known to be false by
defendant, made for the purpose of inducing the other party to rely upon it, justifiable
reliance of the other party on the misrepresentation or material omission, and injury” (Lama
Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370
[1996]; see also Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 406–407,
176 N.Y.S.2d 259, 151 N.E.2d 833 [1958]

16. In its papers, the counter-defendant used an incomplete standard for pleading fraudulent

misrepresentation. The counter-defendant fraudulently omitted material facts that induced the

counter-plaintiff to execute the alleged agreement.

17. The counter-defendant has used this agreement as a trojan horse to take over the merchant’s

business. The power of attorney is open ended and doesn’t identify the counter-defendant’s agents

and representatives. The agreement is a sale of 100% of the merchants’ receivables not just the

percentage bargained for.

18. The merchant unknowingly agreed to the securitization of 100% of its receivables. The

significance of this was not disclosed to the counter-plaintiff.

19. The merchant relied upon the superficial terms of the agreement only for the counter

defendant to take control of the merchant’s business. The merchant essentially sold its business

without its knowledge. Based upon the forgoing, the counter-defendant used this agreement as a

trojan horse to gain total control of counter-plaintiff’s business.

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Negligent Misrepresentation

20. In Ginsburg Dev. Companies, LLC v. Carbone, 134 A.D.3d 890, 894, 22 N.Y.S.3d 485,

490 (2015), the court stated that the elements of negligent misrepresentation as follows:

On a cause of action alleging negligent misrepresentation, the plaintiff is required to
demonstrate “(1) the existence of a special or privity-like relationship imposing a duty on
the defendant to impart correct information to the plaintiff; (2) that the information was
incorrect; and (3) reasonable reliance on the information” (J.A.O. Acquisition Corp. v.
Stavitsky, 8 N.Y.3d 144, 148, 831 N.Y.S.2d 364, 863 N.E.2d 585).

21. Here, there is no dispute that there is a “privity-like relationship” between the parties. This

imposed a duty on the counter-defendant to impart correct information to the counter-plaintiff.

22. The information in the agreement is incorrect. The agreement was represented to the

counter-plaintiff as an advancement of funds for a set percentage of receivables. This isn’t the

case. The agreement is a sale of 100% of the merchant’s receivables. Not only did the counter-

plaintiff sell 100% of its receivables, but it also gave total control of its business to the counter-

defendant. As an example, the power of attorney contained within the agreement is open-ended

and gives authority to numerous unnamed individuals that are under the counter-defendant’s

supervision and control. In addition, the counter-plaintiff unknowingly securitized 100% of its

receivables. The counter-plaintiff detrimentally relied upon the counter-defendant’s

representations that this is nothing more than a merchant cash agreement. The agreement is much

more than that. It is a total takeover of the counter-plaintiff’s business.

23. Based upon the misrepresentation that this transaction is nothing more than the

advancement of money, the counter-plaintiff executed the agreement. Thus, suffering damages.

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THE COUNTERPLAINTIFF HAS PROPERLY PLEAD A CAUSE OF ACTION THE
COUNTER-DEFENDANT BREACHED ITS DUTY OF GOOD FAITH AND FAIR
DEALING

24. Implicit in every contract is a covenant of good faith and fair dealing which encompasses

any promise that a reasonable promisee would understand to be included (see New York Univ. v.

Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763; Dalton v.

Educational Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 663 N.E.2d 289; Murphy v.

American Home Prods. Corp., 58 N.Y.2d 293, 304, 461 N.Y.S.2d 232, 448 N.E.2d 86;

Outback/Empire I, Ltd. Partnership v. Kamitis, Inc., 35 A.D.3d 563, 825 N.Y.S.2d 747). Even if a

party is not in breach of its express contractual obligations, it “may be in breach of the implied

duty of good faith and fair dealing ... when it exercises a contractual right as part of a scheme to

realize gains that the contract implicitly denies or to deprive the other party of the fruit (or benefit)

of its bargain” (Marion Scott Real Estate, Inc. v. Rochdale Vil., Inc., 23 Misc.3d 1129[A], *8, 2009

WL 1425252, 2009 N.Y. Slip Op. 50997[U]; see Moran v. Erk, 11 N.Y.3d 452, 456, 872 N.Y.S.2d

696, 901 N.E.2d 187; Dalton v. Educational Testing Serv., 87 N.Y.2d at 389, 639 N.Y.S.2d 977,

663 N.E.2d 289).

25. Here, the counter-defendant will serve UCC Liens upon counter-plaintiff’s customer

and/payment processors. The counter-defendant has this contractual right because it is the counter-

plaintiff’s “attorney in fact.” Despite the fact that the counter-plaintiff is represented by counsel,

the counter-defendant will act in its own interest and exercise its rights under this power of attorney

clause. As such, the counter-plaintiff will be denied the benefit of its business by the counter-

defendant breaching its obligations as its fiduciary. Moreover, because the counter-plaintiff is

represented by counsel, the power of attorney should be extinguished.

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THE COUNTERDEFENDANT HAS PROPERLY PLED BREACH OF FIDICARY
DUTY

26. To establish a prima facie case for breach of fiduciary duty, a plaintiff must allege “ ‘(1)

the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly

caused by the defendant's misconduct’ ” (Varveris v. Zacharakos, 110 A.D.3d 1059, 973 N.Y.S.2d

774, quoting Rut v. Young Adult Inst., Inc., 74 A.D.3d 776, 777, 901 N.Y.S.2d 715; see Stortini

v. Pollis, 138 A.D.3d 977, 979, 31 N.Y.S.3d 90; Deblinger v. Sani–Pine Prods. Co., Inc., 107

A.D.3d 659, 661, 967 N.Y.S.2d 394).

27. First, a fiduciary relationship exists because counter-defendant has a power of attorney

over the counter-plaintiff. In other words, the counter-defendant is its attorney in fact. In re Matter

of Ferrara, 7 N.Y.3d 244, 254, 852 N.E.2d 138, 819 N.Y.S.2d 215 (2006) (attorney-in-fact to his

or her principal).

28. The counter-defendant breached its fiduciary relationship. First, the counter-defendant

filed a lawsuit against its fiduciary. Second, the counter-defendant filed a UCC lien against its

fiduciary. The power of attorney contained in the contract is incompatible with the obligations the

counter-defendant has undertaken.

29. Lastly, this breach of fiduciary has led the counter-plaintiff to suffer damage. The counter-

plaintiff damages will be fully developed in the discovery process.

DEFENDANT LEAVE TO AMENDING PLEADING

30. Pursuant to CPLR 3025(b), “[a] party may amend his pleading, or supplement it by setting

forth additional or subsequent transactions or occurrences, at any time by leave of court or by

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stipulation of all parties.” Leave to amend pleadings is generally freely given, absent prejudice and

surprise resulting from the delay. Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959

(1983); Antwerpse Diamantbank N.V. v. Nissel, 27 A.D.3d 207, 208 (1st Dep't 2006).

31. Here, should the court decide to dismiss anyone of the defendant’s counterclaims, it is

requested that this honorable court allow the defendant to amend the answer.

CONCLUSION

32. Based upon the forgoing, plaintiff’s motion seeking an order pursuant to CPLR 3221(a)(1)

and (a)(7) dismissing the Counterclaims based upon documentary evidence and for failure to state

a cause of action should be denied in its entirety.

DATED: October 11, 2023
Brooklyn, New York

DOMINICK DALE, ESQ

Dominick Dale Esq.
Attorney(s) for Defendant
81 Court Street
Brooklyn, NY 11201
(917) 816-8327

To: Berkovitch & Bouskila PLLC
Attorney(s) for Plaintiff
1545 U.S. 202
suite 101
Pomona, NY 10970
(212) 729-1477

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WORD COUNT CERTIFICATION

I hereby certify pursuant to part 202.8-b of the Uniform Civil Rules for the Supreme Court

& the County Court that this document according to the word count tool on Microsoft Word, the

total number of words in the document is 349, consistent with the rule that (i) affidavits,

affirmation, briefs and memoranda of law in chief be limited to 7,000 words each (ii) reply

affidavits, affirmations and memorandum be no more than 4200 words and d not contain any

arguments that do not respond or relate to those made in the memoranda in chief

Dated: October 11, 2023
Brooklyn, New York

DOMINICK DALE, ESQ

______________________________
Dominick Dale,

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Motion-Secondary: Ebf Holdings, Llc D/B/A EVEREST BUSINESS FUNDING v. Julio Cesar Londono D/B/A DISTRIBUIDORA DEL VALLE, Julio Cesar Londono

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