Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by plaintiff Capytal.com (hereinafter Capytal or plaintiff) on December 28, 2021, under motion sequence for an order pursuant to CPLR 3212 granting it summary judgment in its favor on the issue of liability on its claim asserted against the defendants 1 Pro Construction, LLC d/b/a 1 Pro Construction ; 1 Pro Construction LLC; 1 Pro Construction LLC.; 1 Pro Construction, LLC; 1 Pro Construction LLC.; 1 Pro Construction, Inc ; 1 Pro Construction, Inc.; One Pro Construction LLC (hereinafter collectively as Company Defendants) and Warren Ashton Cressey II. The motion was unopposed. -Notice of Motion -Affidavit in Support -Affirmation in Support -Exhibit A to E -Statement of Material Facts DECISION & ORDER BACKGROUND On September 23, 2021, Capytal commenced the instant action for, inter alia, breach of contract by filing a summons and verified complaint with the Kings County Clerk’s office. The verified complaint alleges twenty-four allegations of fact in support of two causes of action, namely breach of contract and breach of a guarantee. The verified complaint alleges the following salient facts. On or about August 6, 2021, plaintiff and defendants entered into an agreement whereby plaintiff agreed to purchase all rights to the Company Defendants’ future receivables having an agreed upon value of $58,000.00 for the amount of $40,000.00 (hereinafter the Agreement). Pursuant to the Agreement, the Company Defendants agreed to remit to plaintiff 15 percent of their receivables. The Company Defendants further agreed to have one bank account approved by plaintiff (the “Bank Account”) from which the Company Defendants authorized plaintiff to make ACH withdrawals until $58,000.00 was fully paid to plaintiff. Said withdrawals were a good faith estimate of the Specified Percentage of the Company Defendants’ receivables at the time the Agreement was entered into. In addition, plaintiff alleges that defendant Warren Ashton Cressey II, (hereinafter the Guarantor), agreed to guarantee any, and all amounts owed to plaintiff from the Company Defendants upon a breach in performance by Company Defendants. Plaintiff remitted the purchase price for the future receivables to Company Defendants as agreed. Initially, the Company Defendants met their obligations under the Agreement. The Company Defendants ceased remitting to plaintiff the plaintiff’s share of purchased receivables and otherwise breached the Agreement by intentionally impeding and preventing plaintiff from receiving the specified percentage of the Company Defendants’ receivables, while conducting regular business operations and collecting revenue. The Company Defendants have remitted $19,124.00 of the receivables purchased by plaintiff, leaving a balance of unremitted receivables in the amount of $38,876.00. In addition, pursuant to the Agreement, the Company Defendants incurred NSF fees in the amount of $105.00 and other default fees in the amount of $2,500.00 and attorneys’ fees in the amount of $11,662.80. Despite due demand, the Company Defendants have failed to remit the purchased amount due and owing by the Company Defendants to plaintiff under the Agreement. Moreover, the Guarantor was responsible for all amounts incurred as a result of any breach of the Company Defendant. There remains a balance due and owing to plaintiff on the Agreement in the amount of $53,143.80 plus interest, costs, and disbursements. The Company Defendants have materially breached the Agreement by failing to remit to plaintiff the plaintiff’s share of future receivables, as required under the Agreement and are otherwise intentionally impeding and preventing the plaintiff from receiving the proceeds of the receivables purchased by them. Plaintiff also alleges that pursuant to the Agreement, the Guarantor personally guaranteed that Company Defendants would perform its obligations thereunder and that he would be personally liable for any loss suffered by plaintiff as a result of a breach by the Company Defendants. The Company Defendants have breached the Agreement as detailed above. By reason of the foregoing, plaintiff is entitled to judgment against the Guarantor based on the personal guarantee in the sum of $53,143.80, plus interest, costs, and disbursements. LAW AND APPLICATION There is no opposition to the instant motion. However, a summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion, i.e. defaulted (Liberty Taxi Mgt., Inc. v. Gincherman, 32 AD3d 276, 278 n [1st Dept 2006], citing Vermont Teddy Bear Co., v. 1 — 800 Beargram Co., 373 F3d 241 [2nd Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the…court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law"]; see Cugini v. System Lumber Co., Inc., 111 AD2d 114 [1st Dept 1985]). It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324). Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant’s papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Furthermore, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v. Dino & Artie’s Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]). In the case at bar, the only sworn testimony submitted by the plaintiff in support of the motion was an affirmation of Ariel Bouskila, plaintiff’s counsel (hereinafter Bouskila), and an affidavit of Philip Scaglione (hereinafter Scaglione). Bouskila’s affirmation contends that the facts in support for the motion are contained in the affidavit of Scaglione. Bouskila’s affirmation demonstrated no personal knowledge of any of the facts alleged in the motion or in the verified complaint. An attorney’s affirmation that is not based upon personal knowledge is of no probative or evidentiary significance (Nerayoff v. Khorshad, 168 AD3d 866, 867 [2nd Dept 2019], citing Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2nd Dept 2006]). Scaglione’s affidavit averred that he was the authorized representative of the plaintiff. Scaglione’s affidavit, however, did not explain the basis for his authority. He did not claim, for example, that he was either the attorney-in-fact, an officer of the plaintiff, or some other basis for claiming authority. The motion is silent in this regard. Scaglione’s affidavit is used to authenticate the revenue purchase agreement which was allegedly breached by the defendants. Scaglione’s affidavit is also used as evidence of the defendants’ default of the revenue purchase agreement and of the guarantee. A fundamental requirement of any breach-of-contract action is for the plaintiff to allege that it is a party to the contract or has acquired the rights of a party (Autovest, LLC v. Cassamajor, 195 AD3d 672, 673, [2nd Dept 2021]). A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures (Citibank, N.A. v. Cabrera, 130 AD3d 861, 861 [2nd Dept 2015]). Scaglione, however, does not aver personal knowledge of any of the facts alleged in the verified complaint. Nor does he allege knowledge of the business practice and procedures of the plaintiff. He does refer to an annexed document denominated as a transaction history and contends that it is evidence of the defendants’ default. Assuming that the transaction history is indeed a business record of the plaintiff, Scaglione’s lack of knowledge of the business practice and procedures of the plaintiff renders these business records inadmissible. Consequently, the plaintiff has proffered no evidence in admissible form establishing the defendants’ alleged default of either the revenue purchase agreement or the guarantee. CONCLUSION The motion by plaintiff Capytal.com moves for an order pursuant to CPLR 3212 granting it summary judgment in its favor on the issue of liability as asserted against all defendants is denied without prejudice. The foregoing constitutes the decision and order of the Court.
