Preview
FILED: ROCKLAND COUNTY CLERK 01/25/2024 11:32 PM INDEX NO. 034051/2023
AJ Equity
NYSCEF DOC. NO.Group
43 LLC v. Urban Bay Housing Fund LLC, Slip Copy (2023) RECEIVED NYSCEF: 01/25/2024
80 Misc.3d 1207(A), 194 N.Y.S.3d 714, 2023 N.Y. Slip Op. 50934(U)
NYSCEF Doc No. 21: Exhibit D—Summons and Complaint
80 Misc.3d 1207(A)
Unreported Disposition NYSCEF Doc No. 22: Exhibit E—Answer
(The decision is referenced in the New York Supplement.)
This opinion is uncorrected and will not be NYSCEF Doc No. 23: Exhibit F—Reply to Counterclaim
published in the printed Official Reports.
NYSCEF Doc No. 24: Memorandum of Law
Supreme Court, Kings County, New York.
NYSCEF Doc No. 25: Affirmation of Service
AJ EQUITY GROUP LLC, Plaintiff,
v. NYSCEF Doc No. 26: Request for Judicial Intervention
URBAN BAY HOUSING FUND LLC / NYSCEF Doc No. 27: Addendum to Request for Judicial
Johnruth Capital Inc. / Fast Time Plumbing / Intervention
Florida 4 Sale / Parks Management LLC Submitted by Defendants in Opposition to Motion
and Caleb John Walsh, Defendants.
NYSCEF Doc No. 28: Affirmation of Amos Weinberg, Esq.
Index No. 508662/2022 NYSCEF Doc No. 29: Memorandum of Law
|
Decided on September 1, 2023 NYSCEF Doc No. 30: Response to Statement of Material
Facts
Attorneys and Law Firms
NYSCEF Doc No. 31: Notice of Appearance
Wells Law, P.C., Lancaster, NY (Blane Fellows of counsel),
for Plaintiff. Submitted by Plaintiff
Amos Weinberg, Great Neck, NY (Ilya Murafa of counsel), NYSCEF Doc No. 32: Stipulation—Adjournment of Motion
for Defendants
NYSCEF Doc No. 34: Stipulation—Adjournment of Motion2
Opinion
Submitted by Court
Aaron D. Maslow, J.
NYSCEF Doc No. 36: Transcript of Oral Argument
*1 The following numbered papers were read on these
motions:1 Upon the foregoing papers and having heard oral argument
on the record, the within motion is determined as follows.
Submitted by Plaintiff in Support of Motion
Background
NYSCEF Doc No. 14: Notice of Motion
Plaintiff AJ Equity Group LLC (“Plaintiff”) commenced an
NYSCEF Doc No. 15: Statement of Material Facts action against Urban Bay Housing Fund LLC / Johnruth
Capital Inc. / Fast Time Publishing / Florida 4 Sale / Parks
NYSCEF Doc No. 16: Affidavit of Asher Sussman Management LLC (“Business Defendant”) and Caleb Walsh
(“Individual Defendant”) (collectively “Defendants”) in the
NYSCEF Doc No. 17: Affirmation of Yana Chechelnitsky, amount of $62,854.94 for breach of contract and breach of
Esq. personal guarantee.
NYSCEF Doc No. 18: Exhibit A—Contract
Per the complaint herein, on or about May 4, 2021, Plaintiff
NYSCEF Doc No. 19: Exhibit B—Wire Receipt and Business Defendant entered into a Purchase and Sale of
Future Receivables Agreement (the “Agreement,” NYSCEF
NYSCEF Doc No. 20: Exhibit C—Payment History Doc No. 18) for all rights to Business Defendant's future
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
FILED: ROCKLAND COUNTY CLERK 01/25/2024 11:32 PM INDEX NO. 034051/2023
AJ Equity
NYSCEF DOC. NO.Group
43 LLC v. Urban Bay Housing Fund LLC, Slip Copy (2023) RECEIVED NYSCEF: 01/25/2024
80 Misc.3d 1207(A), 194 N.Y.S.3d 714, 2023 N.Y. Slip Op. 50934(U)
account receivables having the face value of $299,800.00, for summary judgment must be denied (see Rotuba Extruders,
the agreed upon price of $200,000.00. Business Defendant Inc. v Ceppos, 46 NY2d 223, 231 [1978]).
agreed to have one bank account (the “Bank Account”)
that was approved by Plaintiff, pursuant to the Agreement. Plaintiff argued that pursuant to CPLR 3212, summary
Plaintiff purchased two installments totaling $149,000.00 of judgment should be granted because there were no substantial
the receivables from the Business Defendant, for a payment issues of material fact. Additionally, Plaintiff argued that
amount of $100,000.00. (See NYSCEF Doc No. 21 ¶¶5-8.) “Business Defendant breached the Agreement by defaulting
on its representations and warranties to Plaintiff under the
*2 Plaintiff alleged that Business Defendant stopped making Agreement and by failing to direct its receivables/payments
payments on or about June 9, 2021, thereby breaching to Plaintiff, by blocking access to a designated bank account
the Agreement. Business Defendant made payments totaling from which Business Defendant agreed to permit Plaintiff
$89,940.06, leaving a balance of $59,959.94. The combined to withdraw receivables, by failing to deposit receivables
sum of the balance due to Plaintiff and fees total into the Bank Account, and/or by depositing receivables into
$62,854.94. Furthermore, Plaintiff argued that Individual an account other than the agreed upon Bank Account” (see
Defendant personally guaranteed that Business Defendant NYSCEF Doc No. 16 ¶ 19).
would perform its obligations under the Agreement and be
personally liable for any breach by Business Defendant. (See Pertinent parts of the Agreement are as follows:
id. ¶¶ 13-21.)
23. No Bankruptcy. Merchant represents, warrants, and
Plaintiff now moves for summary judgment in its favor covenants that as of the date of this Agreement, Merchant
against Defendants in the principal sum of $62,854.04 plus does not contemplate and has not filed any petition for
interest, costs, and disbursements (see NYSCEF Doc No. 14 bankruptcy protection under Title 11 of the United States
at 1). Code and there has been no involuntary petition brought or
pending against Merchant. Merchant further warrants that
it does not anticipate filing any such bankruptcy petition
and it does not anticipate that an involuntary petition will be
Discussion filed against it. Merchant further warrants that there will be
no statutory presumption that it would have been insolvent
Summary judgment is a drastic remedy that should be granted
on the date of this Agreement.
only if no triable issues of fact exist and the movant is entitled
to judgment as a matter of law (see Alvarez v Prospect Hosp., ...
68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 29. Events of Default. An “Event of Default” will be
361, 364 [1974]). The party moving for summary judgment considered to have taken place if any of the following
must present a prima facie case of entitlement to judgment as occur:
a matter of law, tendering sufficient evidence in admissible
form demonstrating the absence of material issues of fact, and *3 (1) Merchant violates any term or covenant in this
the failure to make such a showing requires denial of the Agreement;
motion, regardless of the sufficiency of the opposing papers
(2) Any representation or warranty by Merchant in
(see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d
this Agreement proves to have been incorrect, false, or
733 [2008]; Alvarez, 68 NY2d at 324). Once a prima facie
misleading in any material respect when made;
showing has been made, however, the burden shifts to the
nonmoving party to produce evidentiary proof in admissible (3) the sending of notice of termination by Merchant or
form sufficient to establish the existence of material issues of Guarantor;
fact that require a trial for resolution or tender an acceptable
excuse for the failure to do so; mere expressions of hope are (4) Merchant transports, moves, interrupts, suspends,
insufficient to raise a genuine issue of fact (see Zuckerman dissolves, or terminates its business without the prior
v City of New York, 49 NY2d 557 [1980]). If there is any written consent of AJ;
doubt as to the existence of a triable fact, the motion for
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2
FILED: ROCKLAND COUNTY CLERK 01/25/2024 11:32 PM INDEX NO. 034051/2023
AJ Equity
NYSCEF DOC. NO.Group
43 LLC v. Urban Bay Housing Fund LLC, Slip Copy (2023) RECEIVED NYSCEF: 01/25/2024
80 Misc.3d 1207(A), 194 N.Y.S.3d 714, 2023 N.Y. Slip Op. 50934(U)
NYSCEF Doc No. 37 at 7). And there was no bankruptcy
(5) Merchant transfers or sells all or substantially all of its either, according to the papers submitted.
assets without the prior written consent of AJ;
The Second Department has discussed this issue, stating “the
(6) Merchant makes or sends notice of any intended bulk
inconsistencies which appear on the face of plaintiff's own
sale or transfer by Merchant without the prior written
papers prohibit the granting of summary judgment, despite the
consent of AJ;
inadequacy of the opposing papers” (Bank of NY v McLean,
(7) Merchant uses multiple depository accounts without the 116 AD2d 546, 547 [2d Dept 1986], citing to Winegrad, 64
prior written consent of AJ; NY2d 851, 853).
(8) Merchant changes the Account without the prior written In an action for personal injuries or for coverage of medical
consent of AJ; expenses arising from a motor vehicle accident, where a
party's papers submitted in support of a motion for summary
(9) Merchant performs any act that reduces the value of any
judgment conflict, there is a failure to meet the prima
Collateral grant under this Agreement
facie burden (see Black v County of Dutchess, 87 AD3d
(10) Merchant defaults under any of the terms, covenants, 1097 [2d Dept 2011] [defendants submitted contradictory
and conditions of any other agreement with AJ; or proof as to whether plaintiff's right knee condition was
caused by subject accident, degenerative disease, or previous
(11) Merchant fails to deposit its Receivables into the accident]; Cracciolo v Omerza, 87 AD3d 674 [2d Dept
Account 2011] [inconsistent norms by defense's examining doctor];
Dettori v Molzon, 306 AD2d 308 [2d Dept 2003] [defendants
If Merchant goes out of business in the ordinary course of submitted contradictory proof as to whether plaintiff's lumbar
its business, is not otherwise in default of this Agreement, spine condition was caused by subject accident or previous
and provides AJ with written notice of this closure within accident]; Shur v Unitrin Advantage Ins. Co., 56 Misc 3d
2 business days thereafter, then such closure will not 136[A], 2017 NY Slip Op 51011[U] [App Term, 9th & 10th
be deemed an Event of Default, and Merchant will be Dists 2017] [IME doctor's report contained contradictory
permitted to liquidate its assets, provided that the proceeds statements as to whether assignor's right knee injury was
of any such liquidation will be deemed Receivables, of “partially causally related” to subject accident or caused
which Merchant will be obligated to AJ for the Specified by “preexisting degenerative changes”]; Hillcrest Radiology
Percentage. Assoc. v State Farm Mut. Auto Ins. Co., 28 Misc 3d 138[A],
(NYSCEF Doc No. 18.) 2010 NY Slip Op 51467[U] [App Term, 2d, 11th & 13th Dists
2010] [other reports in insurer's papers contradict conclusion
Although Plaintiff alleged that Business Defendant defaulted of its peer reviewer that service was not medically necessary].
on its representations on or about June 9, 2021, Plaintiff's
own “Payment History” (NYSCEF Doc No. 20) demonstrates *4 In other personal injury contexts, inconsistencies denude
that Plaintiff still had access to the Bank Account after that a party of a prima facie case on its motion for summary
date and in fact collected $50 payments on June 9 (twice), judgment (e.g. Saaverda v East Fordham Rd. Real Estate
10 (twice), 11, 14, and 15, 2021. The code “NSF” appears, Corp., 233 AD2d 125 [1st Dept 1996] [plaintiff's deposition
which indicates insufficient funds. There was not enough testimony concerning the manner in which the accident
money in the Bank Account to cover attempted withdrawals occurred inconsistent with his own account provided in
of $4,996.67, but the account was not blocked. Thus, the support of motion]. The same applies to summary judgment
allegation that Business Defendant blocked access to the motions in commercial contexts (see Neuman v Otto, 114
Bank Account conflicts with the payment record submitted AD2d 791 [1st Dept 1985] [circumstances surrounding
by Plaintiff itself. This latter point was set forth in defense delivery of check and the reasons for its payment]
counsel's affirmation (see NYSCEF Doc No. 28 ¶¶ 2-5).
Moreover, as defense counsel pointed out at oral argument, Likewise, in an action by a purchaser of accounts receivables
Plaintiff failed to establish a prima facie case that there was where the plaintiff claims a breach of contract by a
a default as defined in paragraph 29 of the Agreement (see defendant but submits conflicting evidence on its motion
for summary judgment, the motion must be denied. Further,
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 3
FILED: ROCKLAND COUNTY CLERK 01/25/2024 11:32 PM INDEX NO. 034051/2023
AJ Equity
NYSCEF DOC. NO.Group
43 LLC v. Urban Bay Housing Fund LLC, Slip Copy (2023) RECEIVED NYSCEF: 01/25/2024
80 Misc.3d 1207(A), 194 N.Y.S.3d 714, 2023 N.Y. Slip Op. 50934(U)
where the moving party's papers suffer from a deficiency of Defendants (see Nationstar Mort. LLC v Goeke, 151 AD3d
inconsistencies, it is not necessary to consider whether the 1237 [3d Dept 2017]).
papers in opposition are sufficient to raise a triable issue of
fact (e.g. Black, 87 AD3d 1097, citing Alvarez, 68 NY2d 320;
Winegrad, 64 NY2d 851). Conclusion
When determining a motion for summary judgement, the Accordingly, it is hereby ORDERED that Plaintiff's motion
court must view the evidence in light most favorable to the for summary judgment is DENIED.
non-moving party (see Bank of NY Mellon v Gordon, 171
AD3d 197 [2019]; Stukas v Streiter, 83 AD3d 18, 22 [2011];
All Citations
Pearson v Dix McBride, LLC, 63 AD3d 895 [2009]). Viewing
Plaintiff's evidence, it is clear that it was contradictory and, Slip Copy, 80 Misc.3d 1207(A), 194 N.Y.S.3d 714 (Table),
therefore, it failed to make out a prima facie case against 2023 WL 5734633, 2023 N.Y. Slip Op. 50934(U)
Footnotes
1 A memorandum in reply submitted by Plaintiff on August 23, 2023 (NYSCEF Doc No. 35), more than a month after this
Court heard oral argument and reserved decision, has not been considered (see Matter of Bronx Envtl. Health & Justice
Inc. v New York City Dept. of Envtl. Protection, 8 Misc 3d 1002[A], 2005 NY Slip Op 50891[U] *5 [Sup Ct, Queens County
2005].)
2 The stipulation to adjourn this motion, scheduled for argument on July 21, 2023, was denied as not being compliant
with the Part Rules requiring three-days’ notice and because there was a prior adjournment, there were no exigent
circumstances, and appearing counsel was familiar with the case (see NYSCEF Doc No. 36, Transcript at 2-3, 7-8;
Hon. Aaron D. Maslow: Part 2 Rules, Part I [Motions & Special Proceedings], Subpart D [Adjournments], https://
ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed August 31, 2023]; Mohammed v St. Barnabas
Hosp., 177 AD3d 509 [1st Dept 2019]; Puzzo v Ayoub, 137 AD3d 770 [2d Dept 2016]).
End of Document © 2023 Thomson Reuters. No claim to original U.S.
Government Works.
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 4
Preview
FILED: ROCKLAND COUNTY CLERK 01/25/2024 11:32 PM INDEX NO. 034051/2023 AJ Equity NYSCEF DOC. NO.Group 43 LLC v. Urban Bay Housing Fund LLC, Slip Copy (2023) RECEIVED NYSCEF: 01/25/2024 80 Misc.3d 1207(A), 194 N.Y.S.3d 714, 2023 N.Y. Slip Op. 50934(U) NYSCEF Doc No. 21: Exhibit D—Summons and Complaint 80 Misc.3d 1207(A) Unreported Disposition NYSCEF Doc No. 22: Exhibit E—Answer (The decision is referenced in the New York Supplement.) This opinion is uncorrected and will not be NYSCEF Doc No. 23: Exhibit F—Reply to Counterclaim published in the printed Official Reports. NYSCEF Doc No. 24: Memorandum of Law Supreme Court, Kings County, New York. NYSCEF Doc No. 25: Affirmation of Service AJ EQUITY GROUP LLC, Plaintiff, v. NYSCEF Doc No. 26: Request for Judicial Intervention URBAN BAY HOUSING FUND LLC / NYSCEF Doc No. 27: Addendum to Request for Judicial Johnruth Capital Inc. / Fast Time Plumbing / Intervention Florida 4 Sale / Parks Management LLC Submitted by Defendants in Opposition to Motion and Caleb John Walsh, Defendants. NYSCEF Doc No. 28: Affirmation of Amos Weinberg, Esq. Index No. 508662/2022 NYSCEF Doc No. 29: Memorandum of Law | Decided on September 1, 2023 NYSCEF Doc No. 30: Response to Statement of Material Facts Attorneys and Law Firms NYSCEF Doc No. 31: Notice of Appearance Wells Law, P.C., Lancaster, NY (Blane Fellows of counsel), for Plaintiff. Submitted by Plaintiff Amos Weinberg, Great Neck, NY (Ilya Murafa of counsel), NYSCEF Doc No. 32: Stipulation—Adjournment of Motion for Defendants NYSCEF Doc No. 34: Stipulation—Adjournment of Motion2 Opinion Submitted by Court Aaron D. Maslow, J. NYSCEF Doc No. 36: Transcript of Oral Argument *1 The following numbered papers were read on these motions:1 Upon the foregoing papers and having heard oral argument on the record, the within motion is determined as follows. Submitted by Plaintiff in Support of Motion Background NYSCEF Doc No. 14: Notice of Motion Plaintiff AJ Equity Group LLC (“Plaintiff”) commenced an NYSCEF Doc No. 15: Statement of Material Facts action against Urban Bay Housing Fund LLC / Johnruth Capital Inc. / Fast Time Publishing / Florida 4 Sale / Parks NYSCEF Doc No. 16: Affidavit of Asher Sussman Management LLC (“Business Defendant”) and Caleb Walsh (“Individual Defendant”) (collectively “Defendants”) in the NYSCEF Doc No. 17: Affirmation of Yana Chechelnitsky, amount of $62,854.94 for breach of contract and breach of Esq. personal guarantee. NYSCEF Doc No. 18: Exhibit A—Contract Per the complaint herein, on or about May 4, 2021, Plaintiff NYSCEF Doc No. 19: Exhibit B—Wire Receipt and Business Defendant entered into a Purchase and Sale of Future Receivables Agreement (the “Agreement,” NYSCEF NYSCEF Doc No. 20: Exhibit C—Payment History Doc No. 18) for all rights to Business Defendant's future © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 FILED: ROCKLAND COUNTY CLERK 01/25/2024 11:32 PM INDEX NO. 034051/2023 AJ Equity NYSCEF DOC. NO.Group 43 LLC v. Urban Bay Housing Fund LLC, Slip Copy (2023) RECEIVED NYSCEF: 01/25/2024 80 Misc.3d 1207(A), 194 N.Y.S.3d 714, 2023 N.Y. Slip Op. 50934(U) account receivables having the face value of $299,800.00, for summary judgment must be denied (see Rotuba Extruders, the agreed upon price of $200,000.00. Business Defendant Inc. v Ceppos, 46 NY2d 223, 231 [1978]). agreed to have one bank account (the “Bank Account”) that was approved by Plaintiff, pursuant to the Agreement. Plaintiff argued that pursuant to CPLR 3212, summary Plaintiff purchased two installments totaling $149,000.00 of judgment should be granted because there were no substantial the receivables from the Business Defendant, for a payment issues of material fact. Additionally, Plaintiff argued that amount of $100,000.00. (See NYSCEF Doc No. 21 ¶¶5-8.) “Business Defendant breached the Agreement by defaulting on its representations and warranties to Plaintiff under the *2 Plaintiff alleged that Business Defendant stopped making Agreement and by failing to direct its receivables/payments payments on or about June 9, 2021, thereby breaching to Plaintiff, by blocking access to a designated bank account the Agreement. Business Defendant made payments totaling from which Business Defendant agreed to permit Plaintiff $89,940.06, leaving a balance of $59,959.94. The combined to withdraw receivables, by failing to deposit receivables sum of the balance due to Plaintiff and fees total into the Bank Account, and/or by depositing receivables into $62,854.94. Furthermore, Plaintiff argued that Individual an account other than the agreed upon Bank Account” (see Defendant personally guaranteed that Business Defendant NYSCEF Doc No. 16 ¶ 19). would perform its obligations under the Agreement and be personally liable for any breach by Business Defendant. (See Pertinent parts of the Agreement are as follows: id. ¶¶ 13-21.) 23. No Bankruptcy. Merchant represents, warrants, and Plaintiff now moves for summary judgment in its favor covenants that as of the date of this Agreement, Merchant against Defendants in the principal sum of $62,854.04 plus does not contemplate and has not filed any petition for interest, costs, and disbursements (see NYSCEF Doc No. 14 bankruptcy protection under Title 11 of the United States at 1). Code and there has been no involuntary petition brought or pending against Merchant. Merchant further warrants that it does not anticipate filing any such bankruptcy petition and it does not anticipate that an involuntary petition will be Discussion filed against it. Merchant further warrants that there will be no statutory presumption that it would have been insolvent Summary judgment is a drastic remedy that should be granted on the date of this Agreement. only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., ... 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 29. Events of Default. An “Event of Default” will be 361, 364 [1974]). The party moving for summary judgment considered to have taken place if any of the following must present a prima facie case of entitlement to judgment as occur: a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and *3 (1) Merchant violates any term or covenant in this the failure to make such a showing requires denial of the Agreement; motion, regardless of the sufficiency of the opposing papers (2) Any representation or warranty by Merchant in (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d this Agreement proves to have been incorrect, false, or 733 [2008]; Alvarez, 68 NY2d at 324). Once a prima facie misleading in any material respect when made; showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible (3) the sending of notice of termination by Merchant or form sufficient to establish the existence of material issues of Guarantor; fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are (4) Merchant transports, moves, interrupts, suspends, insufficient to raise a genuine issue of fact (see Zuckerman dissolves, or terminates its business without the prior v City of New York, 49 NY2d 557 [1980]). If there is any written consent of AJ; doubt as to the existence of a triable fact, the motion for © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 FILED: ROCKLAND COUNTY CLERK 01/25/2024 11:32 PM INDEX NO. 034051/2023 AJ Equity NYSCEF DOC. NO.Group 43 LLC v. Urban Bay Housing Fund LLC, Slip Copy (2023) RECEIVED NYSCEF: 01/25/2024 80 Misc.3d 1207(A), 194 N.Y.S.3d 714, 2023 N.Y. Slip Op. 50934(U) NYSCEF Doc No. 37 at 7). And there was no bankruptcy (5) Merchant transfers or sells all or substantially all of its either, according to the papers submitted. assets without the prior written consent of AJ; The Second Department has discussed this issue, stating “the (6) Merchant makes or sends notice of any intended bulk inconsistencies which appear on the face of plaintiff's own sale or transfer by Merchant without the prior written papers prohibit the granting of summary judgment, despite the consent of AJ; inadequacy of the opposing papers” (Bank of NY v McLean, (7) Merchant uses multiple depository accounts without the 116 AD2d 546, 547 [2d Dept 1986], citing to Winegrad, 64 prior written consent of AJ; NY2d 851, 853). (8) Merchant changes the Account without the prior written In an action for personal injuries or for coverage of medical consent of AJ; expenses arising from a motor vehicle accident, where a party's papers submitted in support of a motion for summary (9) Merchant performs any act that reduces the value of any judgment conflict, there is a failure to meet the prima Collateral grant under this Agreement facie burden (see Black v County of Dutchess, 87 AD3d (10) Merchant defaults under any of the terms, covenants, 1097 [2d Dept 2011] [defendants submitted contradictory and conditions of any other agreement with AJ; or proof as to whether plaintiff's right knee condition was caused by subject accident, degenerative disease, or previous (11) Merchant fails to deposit its Receivables into the accident]; Cracciolo v Omerza, 87 AD3d 674 [2d Dept Account 2011] [inconsistent norms by defense's examining doctor]; Dettori v Molzon, 306 AD2d 308 [2d Dept 2003] [defendants If Merchant goes out of business in the ordinary course of submitted contradictory proof as to whether plaintiff's lumbar its business, is not otherwise in default of this Agreement, spine condition was caused by subject accident or previous and provides AJ with written notice of this closure within accident]; Shur v Unitrin Advantage Ins. Co., 56 Misc 3d 2 business days thereafter, then such closure will not 136[A], 2017 NY Slip Op 51011[U] [App Term, 9th & 10th be deemed an Event of Default, and Merchant will be Dists 2017] [IME doctor's report contained contradictory permitted to liquidate its assets, provided that the proceeds statements as to whether assignor's right knee injury was of any such liquidation will be deemed Receivables, of “partially causally related” to subject accident or caused which Merchant will be obligated to AJ for the Specified by “preexisting degenerative changes”]; Hillcrest Radiology Percentage. Assoc. v State Farm Mut. Auto Ins. Co., 28 Misc 3d 138[A], (NYSCEF Doc No. 18.) 2010 NY Slip Op 51467[U] [App Term, 2d, 11th & 13th Dists 2010] [other reports in insurer's papers contradict conclusion Although Plaintiff alleged that Business Defendant defaulted of its peer reviewer that service was not medically necessary]. on its representations on or about June 9, 2021, Plaintiff's own “Payment History” (NYSCEF Doc No. 20) demonstrates *4 In other personal injury contexts, inconsistencies denude that Plaintiff still had access to the Bank Account after that a party of a prima facie case on its motion for summary date and in fact collected $50 payments on June 9 (twice), judgment (e.g. Saaverda v East Fordham Rd. Real Estate 10 (twice), 11, 14, and 15, 2021. The code “NSF” appears, Corp., 233 AD2d 125 [1st Dept 1996] [plaintiff's deposition which indicates insufficient funds. There was not enough testimony concerning the manner in which the accident money in the Bank Account to cover attempted withdrawals occurred inconsistent with his own account provided in of $4,996.67, but the account was not blocked. Thus, the support of motion]. The same applies to summary judgment allegation that Business Defendant blocked access to the motions in commercial contexts (see Neuman v Otto, 114 Bank Account conflicts with the payment record submitted AD2d 791 [1st Dept 1985] [circumstances surrounding by Plaintiff itself. This latter point was set forth in defense delivery of check and the reasons for its payment] counsel's affirmation (see NYSCEF Doc No. 28 ¶¶ 2-5). Moreover, as defense counsel pointed out at oral argument, Likewise, in an action by a purchaser of accounts receivables Plaintiff failed to establish a prima facie case that there was where the plaintiff claims a breach of contract by a a default as defined in paragraph 29 of the Agreement (see defendant but submits conflicting evidence on its motion for summary judgment, the motion must be denied. Further, © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3 FILED: ROCKLAND COUNTY CLERK 01/25/2024 11:32 PM INDEX NO. 034051/2023 AJ Equity NYSCEF DOC. NO.Group 43 LLC v. Urban Bay Housing Fund LLC, Slip Copy (2023) RECEIVED NYSCEF: 01/25/2024 80 Misc.3d 1207(A), 194 N.Y.S.3d 714, 2023 N.Y. Slip Op. 50934(U) where the moving party's papers suffer from a deficiency of Defendants (see Nationstar Mort. LLC v Goeke, 151 AD3d inconsistencies, it is not necessary to consider whether the 1237 [3d Dept 2017]). papers in opposition are sufficient to raise a triable issue of fact (e.g. Black, 87 AD3d 1097, citing Alvarez, 68 NY2d 320; Winegrad, 64 NY2d 851). Conclusion When determining a motion for summary judgement, the Accordingly, it is hereby ORDERED that Plaintiff's motion court must view the evidence in light most favorable to the for summary judgment is DENIED. non-moving party (see Bank of NY Mellon v Gordon, 171 AD3d 197 [2019]; Stukas v Streiter, 83 AD3d 18, 22 [2011]; All Citations Pearson v Dix McBride, LLC, 63 AD3d 895 [2009]). Viewing Plaintiff's evidence, it is clear that it was contradictory and, Slip Copy, 80 Misc.3d 1207(A), 194 N.Y.S.3d 714 (Table), therefore, it failed to make out a prima facie case against 2023 WL 5734633, 2023 N.Y. Slip Op. 50934(U) Footnotes 1 A memorandum in reply submitted by Plaintiff on August 23, 2023 (NYSCEF Doc No. 35), more than a month after this Court heard oral argument and reserved decision, has not been considered (see Matter of Bronx Envtl. Health & Justice Inc. v New York City Dept. of Envtl. Protection, 8 Misc 3d 1002[A], 2005 NY Slip Op 50891[U] *5 [Sup Ct, Queens County 2005].) 2 The stipulation to adjourn this motion, scheduled for argument on July 21, 2023, was denied as not being compliant with the Part Rules requiring three-days’ notice and because there was a prior adjournment, there were no exigent circumstances, and appearing counsel was familiar with the case (see NYSCEF Doc No. 36, Transcript at 2-3, 7-8; Hon. Aaron D. Maslow: Part 2 Rules, Part I [Motions & Special Proceedings], Subpart D [Adjournments], https:// ww2.nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed August 31, 2023]; Mohammed v St. Barnabas Hosp., 177 AD3d 509 [1st Dept 2019]; Puzzo v Ayoub, 137 AD3d 770 [2d Dept 2016]). End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works. © 2023 Thomson Reuters. No claim to original U.S. Government Works. 4