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FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024
SUPREME COURT OF STATE OF NEW YORK
COUNTY OF NEW YORK
AKF INC., D/B/A FUNDKlTE,
Petitioner,
-against-
Index No.
KANDY BOY LLC d/b/a KANDY BOY, BENJAMIN
ALLEN BOYCE, WANDERKEYS LLC, BAB SUPPLY,
LLC, LAUDERDALE EXOTICS LLC, BOYCE VERIFIED PETITION TO
CAPITAL LLC, VITAMIN MD LLC, CONFIRM ARBITRATION
BOYCEHOLDINGS LLC, RC3 CAPITAL LLC, THE AWARD
PLUG DIRECT LLC, LASH OF LONDON LLC, G & B
MARKETING LLC, DISTRIBUTOR BENJI LLC, and
KANDY BOY PC LLC,
Respondents.
AKF Inc., d/b/a Fundkite ("Fundkite"), by and through its undersigned attorneys, pursuant
to and CPLR §7510, respectfully petitions this Court to confirm an arbitration award in its favor
and against Respondents Kandy Boy LLC d/b/a Kandy Boy, Benjamin Allen Boyce, Kandy Boy
LLC, Wanderkeys LLC, Bab Supply, LLC, Lauderdale Exotics LLC, Boyce Capital LLC, Vitamin
MD LLC, Boyceholdings LLC, RC3 Capital LLC, The Plug Direct LLC, Lash of London LLC, G
& B Marketing LLC, Distributor Benji LLC, and Kandy Boy PC LLC (collectively
"Respondents"). In support of its Petition, Fundkite states as follows:
JURISDICTION AND VENUE
1. This Court has subject matter jurisdiction over this matter pursuant to New York
Constitution Article 6, §7 granting general jurisdiction to the Supreme Court of New York and
CPLR §7501 conferring jurisdiction over New York Courts to enforce arbitration.
2. Under CPLR §7502(a)(i), venue is proper in New York County, as the arbitration
provision upon which Petitioner relies does not designate a County for arbitration, but the
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Petitioner, the party seeking aid for arbitration, resides and is doing business in New York County.
THE PARTIES
3. Petitioner AKF Inc., d/b/a Fundkite ("FundKite"), is a New York corporation with
its principal place of business at 88 Pine Street, Suite 2430, New York, New York 10005.
4. Respondent Kandy Boy LLC d/b/a Kandy Boy ("Merchant") is Florida Limited
Liability Company with a principal place of business at 476 Riverside Ave, Jacksonville, FL
32202.
5. Respondent Benjamin Allen Boyce ("Individual Guarantor") is an individual who
resides at 3351 NE 20th Ave, Oakland Park, FL, 33306.
6. Respondent Kandy Boy LLC ("Business Guarantor 1") is a Florida Limited
Liability Company with a place of business at 1805 Grand Ave, Panama City, FL, 32405 and 8727
Thoams Dr Unit A16 Panama City, FL 32408.
7. Respondent Wanderkeys LLC ("Business Guarantor 2") is a Florida Limited
Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL,
33306.
8. Respondent Bab Supply, LLC ("Business Guarantor 3") is a Pennsylvania Limited
Liability Company with a principal place of business at 146 Grandview Lane Hollidaysburg, PA
16648.
9. Respondent Lauderdale Exotics LLC ("Business Guarantor 4") is a Florida Limited
Liability Company with a principal place of business at 809 N Victoria Park Rd. Ft Lauderdale,
FL 33304.
10. Respondent Boyce Capital LLC ("Business Guarantor 5") is a Florida Limited
Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL,
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33306.
11. Respondent Vitamin MD LLC ("Business Guarantor 6") is a Florida Limited
Liability Company with a principal place of business at 809 N Victoria Park Rd. Fort Lauderdale,
FL 33304.
12. Respondent Boyceholdings LLC ("Business Guarantor 7") is a Florida Limited
Liability Company with a principal place of business at 931 NW 14th St. Fort Lauderdale, FL
33311.
13. Respondent RC3 Capital LLC ("Business Guarantor 8") is a Florida Limited
Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL,
33306.
14. Respondent The Plug Direct LLC ("Business Guarantor 19") is a Florida Limited
Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL,
33306.
15. Respondent Lash of London LLC ("Business Guarantor 10") is a Florida Limited
Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL,
33306.
16. Respondent G & B Marketing LLC ("Business Guarantor 11") is a Pennsylvania
Limited Liability Company with a principal place of business at 146 Grandview Lane
Hollidaysburg, PA 16648.
17. Respondent Distributor Benji LLC ("Business Guarantor 12") is a Florida Limited
Liability Company with a principal place of business at 809 N Victoria Park Rd. Fort Lauderdale,
FL 33304.
18. Respondent Kandy Boy PC LLC ("Business Guarantor 13") is a Florida Limited
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Liability Company with a principal place of business at 1805 Grand Ave, Panama City, FL, 32405.
FACTS AND PROCEDURAL MSTORY
19. On September 19, 2023, Fundkite entered into a Revenue Purchase Agreement
("RPA") with the Merchant in which the Merchant sold $43,632.00 of its future Receipts (the
"Purchased Amount") to Fundkite in exchange for an upfront lump sum payment of $30,300.00,
less $1,397.00, representing applicable fees and costs specified in the Agreement ("Purchase
Price"). (RPA at p. 2.) A true and correct copy of the Agreement is attached as Exhibit A.
20. Respondent Benjamin Allen Boyce, Kandy Boy LLC, Wanderkeys LLC, Bab
Supply, LLC, Lauderdale Exotics LLC, Boyce Capital LLC, Vitamin MD LLC, Boyceholdings
LLC, RC3 Capital LLC, The Plug Direct LLC, Lash of London LLC, G & B Marketing LLC,
Distributor Benji LLC, and Kandy Boy PC LLC (Collectively "Guarantors"), guaranteed the
Merchant's performance under the RPA. (RPA at pp. 16-22.)
21. Pursuant to the Agreement, the Merchant agreed to deposit a specified percentage
of its Receipts into a specific bank account owned by the Merchant from which Fundkite was
authorized by the Merchant to collect the agreed-upon Receipts on a weekly basis (the "Designated
Account") until the entire Purchased Amount was collected by Fundkite. (RPA § 1.1.)
22. Under the Agreement, the Merchant agreed that a default would occur if the
Merchant "refuses to deliver the Remittance Percentage of its Receipts as required by this
Agreement". (RPA § 3.1(b).), and Merchant agreed that a default would occur if the Merchant
"voluntarily interrupts or diverts Receipts from SELLER's Designated Account with the intent to
avoid delivering Receipts to [Fundkite]". (RPA § 3.1(k).).
23. Under the Agreement, upon an Event of Default, all Receipts purchased became
immediately due and payable in full to FundKite, plus all fees and charges including reasonable
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attorney's fees, costs and default fees. (RPA § 3.2.)
24. Petitioner Fundkite dutifully carried out its duties on or around September 19, 2023,
Fundkite paid, under the RPA, the Purchase Price to the Merchant of $30,300.00, less $1,397.00
parties'
in applicable fees and costs, as specified in the RPA.
25. However, beginning on October 25, 2023, Fundkite received notices from its bank
that its scheduled weekly debit of Receipts from the Designated Account was declined because
"Insufficient Funds.". A true and correct copy of the notice is attached as Exhibit B.
26. Although insufficient funds do not, by itself, constitute a default under the
Agreement, Fundkite discovered that the Merchant did not truly lack funds to cover the amounts
owed under the Agreement because Fundkite discovered that the Merchant was still in business
and thus generating Receipts.
27. For example, Merchant, which is a candy business in Florida, still has an operative
website, https://kandyboy.com/, where the public can submit information to purchase vegan
gummies.
28. Also, the screen capture of the Merchant's website, taken on December 6, 2023,
shows that the Merchant is currently open for business and various bundles of gummies are
available for purchase.
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" HOME SHD LEAn· WHOLE BALE
_ .. .y I
i -
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29. The Merchant did not contact Claimant to justify the stopped remittances, nor did
the Merchant attempt to show any supposed downturn with any documentation, which the
Merchant had a right and obligation to do under the RPA.
30. More importantly, the Merchant did not restore its Receipts back into the
Designated Account to allow Claimant to collect Receipts under the RPA.
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31. The Merchant's act of diverting receipts from the Designated Account and refusal
to turn over the diverted Receipts to Fundkite constitute defaults under Section § 3.1(b) of the
RPA, barring a Merchant from "refus[ing] to deliver the Remittance Percentage of its Receipts as
Agreement"
required by this and under Section 3.1(k) of the RPA, barring a Merchant from
"voluntarily interrupt[ing] or divert[ing] Receipts from SELLER's Designated Account with the
intent to avoid delivering Receipts to [Fundkite]".
32. Based on these reasons of default, the full outstanding unpaid amounts due under
the Agreement from the Merchant to Fundkite became due. (RPA § 3.2.)
33. As of the date of the commencement of arbitration, the Merchant remitted only
$7,618.38 of the $43,632.00 Purchased Amount under the RPA, leaving a balance of $36,013.62
due under the Agreement. A true and correct copy of the account maintained by Fundkite in the
regular course of business of the payments made to the Merchant from Fundkite, and received by
Fundkite from the Merchant, is attached as Exhibit C.
34. Further, as of the date of the commencement of arbitration, Fundkite was entitled
to a default fee of 25% of the outstanding amount of $36,013.62, which is $9,003.41 thereby
bringing the total amount owed by the Respondents under the RPA to $45,017.03.
35. After the Merchant defaulted on the Agreement, Fundkite made numerous attempts
to contact both the Merchant and the Guarantors at the phone numbers and email addresses that
were provided by them in the Agreement and application for funding, to inquire about why the
Merchant stopped depositing Receipts into the Designated Account and to demand that
Respondents restore their Receipts into the Designated Account to allow Fundkite to resume
collecting Receipts under the Agreement.
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ARBITRATION BETWEEN THE PARTIES
36. On December 8, 2023, Fundkite submitted the dispute for arbitration before the
Mediation and Civil Arbitration, Inc. d /a RapidRuling ("Rapid").
37. On December 12, 2023, Fundkite served the Commercial Demand for Arbitration
form along with its supporting documents by UPS Next Day Air Saver in conformity to Rule 32.1,
of Rapid Rules. Exhibit D.
38. Rule 32.1 of Rapid, entitled "Serving Notices and Papers", (see Exhibit E):
Each party shall be deemed to have consented that any papers, notices, or process
necessary or proper for the initiation or continuation of an arbitration under these
Rules; for any court action in connection therewith; or for the entry of judgment on
any award made under these Rules may be served on a party by e-mail addressed
to the or its counsel at the address filed that with the e-
party by party RapidRuling,
mail address designated under the agreement to arbitrate, or the last known address
or by FedEx Priority Overnight, UPS Next Day Air, or personal service, in or
outside the state where the arbitration is to be held.
39. Regarding Arbitration, the RPA entered between the parties expressly states at §
4.14. that any party, including buyers and sellers of Receipts, and guarantors, has the right to
"arbitrate all disputes and claims arising out of or relating to this Agreement". To invoke that right,
the requesting party is required to "first send to all other parties, by certified mail, a written notice
arbitrate."
of intent to Per the RPA, upon receipt of such notice, the other parties agree to be bound
by arbitration. Further, If the parties do not "reach an agreement to resolve the claim within 30
days after the notice is received, [any party] may commence an arbitration proceeding with the
Mediation and Civil Arbitration, Inc. d /a RapidRuling ("Rapid") or the forum.
40. In conformity with Section § 4.14 of the RPA, on November 6, 2023, Fundkite did
send a written Notice of Intent to Arbitrate by certified mail with return receipt requested to the
Merchant and the Guarantors. A true and correct copy of that Notice and the Affidavit of Service
of that Notice is as Exhibit F.
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41. Further, Fundkite served on Respondents the Commercial Demand for Arbitration
form along with supporting documents by UPS Next Day Air in conformity to Rule 32.1, of Rapid
Rules. Exhibit D.
42. Thus, Respondents have been given sufficient notice of this arbitration and have
been given every opportunity to participate in this arbitration.
43. On February 12, 2024, Arbitrator Ira David, aner receiving the testimony of
Petitioner on its claims against the Respondents, issued a Final Award of Arbitrator in favor of
Petitioner Fundkite. A copy of the Final Award, written, signed, and affirmed by the arbitrator is
attached hereto as Exhibit G.
44. Per the Final Award of Arbitrator dated February 12, 2024, Respondents were
found to be liable and owe to Petitioner Fundkite the sum of FOURTY FIVE THOUSAND,
THREE HUNDRED SEVENTEEN DOLLARS AND THREE CENTS ($45,317.03) representing
the $36,013.62 due under the RPA, the 25% default fee in the amount of $9,003.41, and additional
documented arbitration fees paid to Rapid in the amount of $300.00.
45. Per the Final Award of Arbitrator dated February 12, 2024, Respondents were
found to be liable and owe to Petitioner an award of all costs in confirming this Final Arbitral
Award and post judgment interest at nine-percent (9%) per annum.
46. After Petitioner received the Final Award, the Petitioner became aware of further
remittances received in the amount of $4,389.14. Thus, reducing the arbitration award to
$40,927.89
47. Per the requirements of CPLR §7510, less than a year has expired since the date of
the delivery of the Rapid Award.
48. Further, per CPLR § 7511, the Final Award has not been vacated or modified.
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RELIEF SOUGHT
WHEREFORE, Petitioner Fundkite prays that this Court, pursuant to CPLR 7514:
1) Confirm the written Final Award of Arbitrator dated February 12, 2024.
2) Enter JUDGMENT in the amount of FOURTY THOUSAND, NINE HUNDRED
TWENTY-SEVEN DOLLARS AND EIGHTY-NINE CENTS ($40,927.89)
representing the additional remittance received, and award of all costs in
confirming this Final Arbitral Award and post judgment interest at nine-percent
(9%) per annum
3) Grant such other and further relief as the Court deems just and proper.
Dated: Brooklyn, New York Respectfully submitted,
March 5, 2024
/s/ Oleg A. Mestechkin
Oleg A. Mestechkin, Esq.
Wing K. Chiu, Esq.
MESTECHKIN LAW GROUP P.C.
2218 Ocean Avenue
Brooklyn, NY 11229
Tel. (212) 256-1113
Fax. (646) 358-4906
om@lawmig.com
wkc@lawmig.com
Attorneys for Petitioner AKF Inc. d/b/a Fundkite
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VERIFICATION
STATE OF FLORIDA )
) ss.
COUNTY OF MIAMI-DADE )
Alex Shvarts, Chief Executive Officer of Petitioner, AKF, Inc. d/b/a Fundkite
("Fundkite"), being duly sworn, deposes and states:
Deponent has read the foregoing Verified Petition to Confirm Arbitration Award and
Exhibits A through G inclusive and knows the contents thereof. The language of the foregoing
Verified Petition to Confirm Arbitration Award was prepared in whole or in part by the attorneys
for Petitioner. Deponent further states that the allegations and statements of, and Exhibits to, such
Verified Petition to Confirm Arbitration Award are true to his knowledge, information and belief.
Petitioner provided exhibits consisting of business records compiled and kept in the ordinary
course of business at or about the time of the events recorded therein, by persons with personal
knowledge of such events and pleadings prepared by counsel for Fundkite in connection with the
arbitration referenced herein and the Award issued by the Arbitrator. The grounds for deponent's
knowledge, information and belief are based on: (1) his personal knowledge gained through his
duties and responsibilities as Chief Executive Officer of Petitioner; (2) his review of documents;
and (3) his communications with persons he believes have personal knowledge of the subject
matter of this case.
EXECUTED this day of March, 2024.
ALE
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FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 SUPREME COURT OF STATE OF NEW YORK COUNTY OF NEW YORK AKF INC., D/B/A FUNDKlTE, Petitioner, -against- Index No. KANDY BOY LLC d/b/a KANDY BOY, BENJAMIN ALLEN BOYCE, WANDERKEYS LLC, BAB SUPPLY, LLC, LAUDERDALE EXOTICS LLC, BOYCE VERIFIED PETITION TO CAPITAL LLC, VITAMIN MD LLC, CONFIRM ARBITRATION BOYCEHOLDINGS LLC, RC3 CAPITAL LLC, THE AWARD PLUG DIRECT LLC, LASH OF LONDON LLC, G & B MARKETING LLC, DISTRIBUTOR BENJI LLC, and KANDY BOY PC LLC, Respondents. AKF Inc., d/b/a Fundkite ("Fundkite"), by and through its undersigned attorneys, pursuant to and CPLR §7510, respectfully petitions this Court to confirm an arbitration award in its favor and against Respondents Kandy Boy LLC d/b/a Kandy Boy, Benjamin Allen Boyce, Kandy Boy LLC, Wanderkeys LLC, Bab Supply, LLC, Lauderdale Exotics LLC, Boyce Capital LLC, Vitamin MD LLC, Boyceholdings LLC, RC3 Capital LLC, The Plug Direct LLC, Lash of London LLC, G & B Marketing LLC, Distributor Benji LLC, and Kandy Boy PC LLC (collectively "Respondents"). In support of its Petition, Fundkite states as follows: JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this matter pursuant to New York Constitution Article 6, §7 granting general jurisdiction to the Supreme Court of New York and CPLR §7501 conferring jurisdiction over New York Courts to enforce arbitration. 2. Under CPLR §7502(a)(i), venue is proper in New York County, as the arbitration provision upon which Petitioner relies does not designate a County for arbitration, but the 1 1 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 Petitioner, the party seeking aid for arbitration, resides and is doing business in New York County. THE PARTIES 3. Petitioner AKF Inc., d/b/a Fundkite ("FundKite"), is a New York corporation with its principal place of business at 88 Pine Street, Suite 2430, New York, New York 10005. 4. Respondent Kandy Boy LLC d/b/a Kandy Boy ("Merchant") is Florida Limited Liability Company with a principal place of business at 476 Riverside Ave, Jacksonville, FL 32202. 5. Respondent Benjamin Allen Boyce ("Individual Guarantor") is an individual who resides at 3351 NE 20th Ave, Oakland Park, FL, 33306. 6. Respondent Kandy Boy LLC ("Business Guarantor 1") is a Florida Limited Liability Company with a place of business at 1805 Grand Ave, Panama City, FL, 32405 and 8727 Thoams Dr Unit A16 Panama City, FL 32408. 7. Respondent Wanderkeys LLC ("Business Guarantor 2") is a Florida Limited Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL, 33306. 8. Respondent Bab Supply, LLC ("Business Guarantor 3") is a Pennsylvania Limited Liability Company with a principal place of business at 146 Grandview Lane Hollidaysburg, PA 16648. 9. Respondent Lauderdale Exotics LLC ("Business Guarantor 4") is a Florida Limited Liability Company with a principal place of business at 809 N Victoria Park Rd. Ft Lauderdale, FL 33304. 10. Respondent Boyce Capital LLC ("Business Guarantor 5") is a Florida Limited Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL, 2 2 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 33306. 11. Respondent Vitamin MD LLC ("Business Guarantor 6") is a Florida Limited Liability Company with a principal place of business at 809 N Victoria Park Rd. Fort Lauderdale, FL 33304. 12. Respondent Boyceholdings LLC ("Business Guarantor 7") is a Florida Limited Liability Company with a principal place of business at 931 NW 14th St. Fort Lauderdale, FL 33311. 13. Respondent RC3 Capital LLC ("Business Guarantor 8") is a Florida Limited Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL, 33306. 14. Respondent The Plug Direct LLC ("Business Guarantor 19") is a Florida Limited Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL, 33306. 15. Respondent Lash of London LLC ("Business Guarantor 10") is a Florida Limited Liability Company with a principal place of business at 3351 NE 20th Ave, Oakland Park, FL, 33306. 16. Respondent G & B Marketing LLC ("Business Guarantor 11") is a Pennsylvania Limited Liability Company with a principal place of business at 146 Grandview Lane Hollidaysburg, PA 16648. 17. Respondent Distributor Benji LLC ("Business Guarantor 12") is a Florida Limited Liability Company with a principal place of business at 809 N Victoria Park Rd. Fort Lauderdale, FL 33304. 18. Respondent Kandy Boy PC LLC ("Business Guarantor 13") is a Florida Limited 3 3 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 Liability Company with a principal place of business at 1805 Grand Ave, Panama City, FL, 32405. FACTS AND PROCEDURAL MSTORY 19. On September 19, 2023, Fundkite entered into a Revenue Purchase Agreement ("RPA") with the Merchant in which the Merchant sold $43,632.00 of its future Receipts (the "Purchased Amount") to Fundkite in exchange for an upfront lump sum payment of $30,300.00, less $1,397.00, representing applicable fees and costs specified in the Agreement ("Purchase Price"). (RPA at p. 2.) A true and correct copy of the Agreement is attached as Exhibit A. 20. Respondent Benjamin Allen Boyce, Kandy Boy LLC, Wanderkeys LLC, Bab Supply, LLC, Lauderdale Exotics LLC, Boyce Capital LLC, Vitamin MD LLC, Boyceholdings LLC, RC3 Capital LLC, The Plug Direct LLC, Lash of London LLC, G & B Marketing LLC, Distributor Benji LLC, and Kandy Boy PC LLC (Collectively "Guarantors"), guaranteed the Merchant's performance under the RPA. (RPA at pp. 16-22.) 21. Pursuant to the Agreement, the Merchant agreed to deposit a specified percentage of its Receipts into a specific bank account owned by the Merchant from which Fundkite was authorized by the Merchant to collect the agreed-upon Receipts on a weekly basis (the "Designated Account") until the entire Purchased Amount was collected by Fundkite. (RPA § 1.1.) 22. Under the Agreement, the Merchant agreed that a default would occur if the Merchant "refuses to deliver the Remittance Percentage of its Receipts as required by this Agreement". (RPA § 3.1(b).), and Merchant agreed that a default would occur if the Merchant "voluntarily interrupts or diverts Receipts from SELLER's Designated Account with the intent to avoid delivering Receipts to [Fundkite]". (RPA § 3.1(k).). 23. Under the Agreement, upon an Event of Default, all Receipts purchased became immediately due and payable in full to FundKite, plus all fees and charges including reasonable 4 4 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 attorney's fees, costs and default fees. (RPA § 3.2.) 24. Petitioner Fundkite dutifully carried out its duties on or around September 19, 2023, Fundkite paid, under the RPA, the Purchase Price to the Merchant of $30,300.00, less $1,397.00 parties' in applicable fees and costs, as specified in the RPA. 25. However, beginning on October 25, 2023, Fundkite received notices from its bank that its scheduled weekly debit of Receipts from the Designated Account was declined because "Insufficient Funds.". A true and correct copy of the notice is attached as Exhibit B. 26. Although insufficient funds do not, by itself, constitute a default under the Agreement, Fundkite discovered that the Merchant did not truly lack funds to cover the amounts owed under the Agreement because Fundkite discovered that the Merchant was still in business and thus generating Receipts. 27. For example, Merchant, which is a candy business in Florida, still has an operative website, https://kandyboy.com/, where the public can submit information to purchase vegan gummies. 28. Also, the screen capture of the Merchant's website, taken on December 6, 2023, shows that the Merchant is currently open for business and various bundles of gummies are available for purchase. 5 5 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 " HOME SHD LEAn· WHOLE BALE _ .. .y I i - ¿ n 29. The Merchant did not contact Claimant to justify the stopped remittances, nor did the Merchant attempt to show any supposed downturn with any documentation, which the Merchant had a right and obligation to do under the RPA. 30. More importantly, the Merchant did not restore its Receipts back into the Designated Account to allow Claimant to collect Receipts under the RPA. 6 6 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 31. The Merchant's act of diverting receipts from the Designated Account and refusal to turn over the diverted Receipts to Fundkite constitute defaults under Section § 3.1(b) of the RPA, barring a Merchant from "refus[ing] to deliver the Remittance Percentage of its Receipts as Agreement" required by this and under Section 3.1(k) of the RPA, barring a Merchant from "voluntarily interrupt[ing] or divert[ing] Receipts from SELLER's Designated Account with the intent to avoid delivering Receipts to [Fundkite]". 32. Based on these reasons of default, the full outstanding unpaid amounts due under the Agreement from the Merchant to Fundkite became due. (RPA § 3.2.) 33. As of the date of the commencement of arbitration, the Merchant remitted only $7,618.38 of the $43,632.00 Purchased Amount under the RPA, leaving a balance of $36,013.62 due under the Agreement. A true and correct copy of the account maintained by Fundkite in the regular course of business of the payments made to the Merchant from Fundkite, and received by Fundkite from the Merchant, is attached as Exhibit C. 34. Further, as of the date of the commencement of arbitration, Fundkite was entitled to a default fee of 25% of the outstanding amount of $36,013.62, which is $9,003.41 thereby bringing the total amount owed by the Respondents under the RPA to $45,017.03. 35. After the Merchant defaulted on the Agreement, Fundkite made numerous attempts to contact both the Merchant and the Guarantors at the phone numbers and email addresses that were provided by them in the Agreement and application for funding, to inquire about why the Merchant stopped depositing Receipts into the Designated Account and to demand that Respondents restore their Receipts into the Designated Account to allow Fundkite to resume collecting Receipts under the Agreement. 7 7 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 ARBITRATION BETWEEN THE PARTIES 36. On December 8, 2023, Fundkite submitted the dispute for arbitration before the Mediation and Civil Arbitration, Inc. d /a RapidRuling ("Rapid"). 37. On December 12, 2023, Fundkite served the Commercial Demand for Arbitration form along with its supporting documents by UPS Next Day Air Saver in conformity to Rule 32.1, of Rapid Rules. Exhibit D. 38. Rule 32.1 of Rapid, entitled "Serving Notices and Papers", (see Exhibit E): Each party shall be deemed to have consented that any papers, notices, or process necessary or proper for the initiation or continuation of an arbitration under these Rules; for any court action in connection therewith; or for the entry of judgment on any award made under these Rules may be served on a party by e-mail addressed to the or its counsel at the address filed that with the e- party by party RapidRuling, mail address designated under the agreement to arbitrate, or the last known address or by FedEx Priority Overnight, UPS Next Day Air, or personal service, in or outside the state where the arbitration is to be held. 39. Regarding Arbitration, the RPA entered between the parties expressly states at § 4.14. that any party, including buyers and sellers of Receipts, and guarantors, has the right to "arbitrate all disputes and claims arising out of or relating to this Agreement". To invoke that right, the requesting party is required to "first send to all other parties, by certified mail, a written notice arbitrate." of intent to Per the RPA, upon receipt of such notice, the other parties agree to be bound by arbitration. Further, If the parties do not "reach an agreement to resolve the claim within 30 days after the notice is received, [any party] may commence an arbitration proceeding with the Mediation and Civil Arbitration, Inc. d /a RapidRuling ("Rapid") or the forum. 40. In conformity with Section § 4.14 of the RPA, on November 6, 2023, Fundkite did send a written Notice of Intent to Arbitrate by certified mail with return receipt requested to the Merchant and the Guarantors. A true and correct copy of that Notice and the Affidavit of Service of that Notice is as Exhibit F. 8 8 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 41. Further, Fundkite served on Respondents the Commercial Demand for Arbitration form along with supporting documents by UPS Next Day Air in conformity to Rule 32.1, of Rapid Rules. Exhibit D. 42. Thus, Respondents have been given sufficient notice of this arbitration and have been given every opportunity to participate in this arbitration. 43. On February 12, 2024, Arbitrator Ira David, aner receiving the testimony of Petitioner on its claims against the Respondents, issued a Final Award of Arbitrator in favor of Petitioner Fundkite. A copy of the Final Award, written, signed, and affirmed by the arbitrator is attached hereto as Exhibit G. 44. Per the Final Award of Arbitrator dated February 12, 2024, Respondents were found to be liable and owe to Petitioner Fundkite the sum of FOURTY FIVE THOUSAND, THREE HUNDRED SEVENTEEN DOLLARS AND THREE CENTS ($45,317.03) representing the $36,013.62 due under the RPA, the 25% default fee in the amount of $9,003.41, and additional documented arbitration fees paid to Rapid in the amount of $300.00. 45. Per the Final Award of Arbitrator dated February 12, 2024, Respondents were found to be liable and owe to Petitioner an award of all costs in confirming this Final Arbitral Award and post judgment interest at nine-percent (9%) per annum. 46. After Petitioner received the Final Award, the Petitioner became aware of further remittances received in the amount of $4,389.14. Thus, reducing the arbitration award to $40,927.89 47. Per the requirements of CPLR §7510, less than a year has expired since the date of the delivery of the Rapid Award. 48. Further, per CPLR § 7511, the Final Award has not been vacated or modified. 9 9 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 RELIEF SOUGHT WHEREFORE, Petitioner Fundkite prays that this Court, pursuant to CPLR 7514: 1) Confirm the written Final Award of Arbitrator dated February 12, 2024. 2) Enter JUDGMENT in the amount of FOURTY THOUSAND, NINE HUNDRED TWENTY-SEVEN DOLLARS AND EIGHTY-NINE CENTS ($40,927.89) representing the additional remittance received, and award of all costs in confirming this Final Arbitral Award and post judgment interest at nine-percent (9%) per annum 3) Grant such other and further relief as the Court deems just and proper. Dated: Brooklyn, New York Respectfully submitted, March 5, 2024 /s/ Oleg A. Mestechkin Oleg A. Mestechkin, Esq. Wing K. Chiu, Esq. MESTECHKIN LAW GROUP P.C. 2218 Ocean Avenue Brooklyn, NY 11229 Tel. (212) 256-1113 Fax. (646) 358-4906 om@lawmig.com wkc@lawmig.com Attorneys for Petitioner AKF Inc. d/b/a Fundkite 10 10 of 11 FILED: NEW YORK COUNTY CLERK 03/12/2024 06:38 PM INDEX NO. 651325/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/12/2024 VERIFICATION STATE OF FLORIDA ) ) ss. COUNTY OF MIAMI-DADE ) Alex Shvarts, Chief Executive Officer of Petitioner, AKF, Inc. d/b/a Fundkite ("Fundkite"), being duly sworn, deposes and states: Deponent has read the foregoing Verified Petition to Confirm Arbitration Award and Exhibits A through G inclusive and knows the contents thereof. The language of the foregoing Verified Petition to Confirm Arbitration Award was prepared in whole or in part by the attorneys for Petitioner. Deponent further states that the allegations and statements of, and Exhibits to, such Verified Petition to Confirm Arbitration Award are true to his knowledge, information and belief. Petitioner provided exhibits consisting of business records compiled and kept in the ordinary course of business at or about the time of the events recorded therein, by persons with personal knowledge of such events and pleadings prepared by counsel for Fundkite in connection with the arbitration referenced herein and the Award issued by the Arbitrator. The grounds for deponent's knowledge, information and belief are based on: (1) his personal knowledge gained through his duties and responsibilities as Chief Executive Officer of Petitioner; (2) his review of documents; and (3) his communications with persons he believes have personal knowledge of the subject matter of this case. EXECUTED this day of March, 2024. ALE