The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 were read on this motion for JUDGMENT-SUMMARY Upon the foregoing documents, it is ordered that this motion is granted.Plaintiff moves for summary judgment, pursuant to CPLR 3212, in its favor against defendants. Plaintiff also moves, pursuant to CPLR 3211, to dismiss defendants’ counterclaims and to strike defendants’ affirmative defenses. Defendants oppose the motion.On January 12, 2016 and September 2, 2016, plaintiff and defendants entered into two agreements for the purchase and sale of future receivables (NYSCEF Doc. No. 19 at 2). Pursuant to the January agreement, plaintiff purchased from defendant FNI Healthcare, Inc. d/b/a FNI Health Care (FNI) $50,300.00 of future receivables generated during the course of its business (id.). Pursuant to the September agreement, plaintiff purchased from FNI $26,500.00 of future receivables generated during the course of its business (id.). Defendant Dig Singh signed a personal guaranty in support of the two agreements. Plaintiff asserts that defendants stopped making payments towards the agreements on or about May 19, 2017. On or about July 13, 2017, plaintiff notified defendants of their default (see NYSCEF DOC. No. 18).The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion (Alvarez v. Prospect Hospital, 68 NY2d 320). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the “burden of production” (not the burden of persuasion) shifts to the opponent, who must now come forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact.Plaintiff’s motion must be granted as to defendant FNI based upon the clear breach of the express terms of the two agreements. The elements of a breach of contract claim are: (1) the existence of a valid contract; (2) the plaintiff’s performance thereunder; (3) the defendant’s breach of the contract; and (4) resulting damages. (Harris v. Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). Plaintiff has established these elements by submitting an affidavit by plaintiff’s vice president (NYSCEF Doc. No. 18), who avers that defendants have stopped making payments toward the future receivables that plaintiff purchased.In opposition, defendants failed to raise a triable issue of fact. They do not contest that they owe money to plaintiff pursuant to the agreements. The only legal stance in opposition to the motion is that the contract is usurious (see NYSCEF Doc No. 23). However, a “corporation…is prohibited from asserting the defense of usury” (Schneider v. Phelps, 41 NY2d 238, 242 [1977]). “Likewise, an individual guarantor of a corporate obligation is also precluded from asserting such a defense” (id.). Defendants’ defense of usury must therefore be stricken pursuant to CPLR 3211(b) (dismissing a defense where it has no merit). Likewise, their counterclaim for usury must be dismissed (see Intima-Eighteen, Inc. v. A.H. Schreiber Co., Inc., 172 AD2d 456, 457 [1st Dept 1991]).Summary judgment must also be granted as against defendant Singh. Singh is liable to plaintiff pursuant to the personal guaranty. Importantly, Singh executed the guaranty in writing. “[W]here a guaranty is clear and unambiguous on its face and, by its language, absolute and unconditional, the signer is conclusively bound by its terms absent a showing of fraud, duress or other wrongful act in its inducement” (Citibank, N.A. v. Uri Schwartz & Sons Diamonds Ltd., 97 AD3d 444, 446-47 [1st Dept 2012]). Thus, the plain language of guaranty, in conjunction with the agreement, and the factually uncontested nonpayment, renders Singh also liable for FNI’s contractual obligations.Accordingly, it is herebyORDERED that plaintiff’s motion for summary judgment is granted as against defendant FNI Healthcare, Inc. d/b/a FNI Health Care; and it is furtherORDERED that plaintiff’s motion for summary judgment is granted as against defendant Dig Vijay Singh; and it is furtherORDERED that the branch of plaintiff’s motion that seeks to dismiss defendants’ counterclaims and to strike defendants’ defenses is granted; and it is further ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff and against both named defendants, jointly and severally, in the amount of $38,877.99, with interest at the statutory rate from July 14, 2017, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs.Dated: July 18, 2019
