Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by plaintiff Diesel Funding LLC (hereinafter DFL or plaintiff) on July 13, 2022, under motion sequence one, for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability on the claims asserted against defendants RCI PLBG Inc., RCI PLBG Group Inc, and Chase Mechanical Corp (hereinafter collectively as the Corporate defendants); and defendants Chris Chierchio, and Robert Dimiceli (hereinafter collectively as the Guarantors). Notice of Motion Affidavit in Support Affirmation in Support Exhibit A to D Statement of Material Facts DECISION & ORDER BACKGROUND On June 1, 2022, DFL commenced the instant action for, inter alia, breach of contract by filing a summons and complaint with the Kings County Clerk’s office (KCCO). On June 7, 2022, the defendants joined issued by interposing and filing a joint answer with the KCCO. The complaint alleges twenty-five allegations of fact in support of three causes of action, namely, breach of contract, breach of a guaranty agreement, and unjust enrichment. The complaint alleges the following salient facts. On or about December 17, 2019, DLF and the defendants entered into an agreement whereby DLF agreed to purchase all rights to the Corporate defendants’ future receivables having an agreed upon value of $1,244,170.00 (hereinafter the Agreement). Pursuant to the Agreement, the Corporate defendants agreed to remit to plaintiff 17 percent of their receivables. The Corporate defendants stopped making payments to DLF and breached the Agreement by intentionally impeding and preventing DLF from making the agreed upon ACH withdrawals from the Corporate defendants’ bank account. In addition, the Guarantors agreed to guarantee any, and all amounts owed to DLF from Corporate defendants upon a breach in performance by Corporate defendants. DLF remitted the purchase price for the future receivables to Corporate defendants as agreed. The Corporate defendants initially met their obligations under the Agreement. They made payments totaling $495,000.00, leaving a balance of $749,170.00. Nevertheless, the Corporate defendants are alleged to have failed to pay the amounts owed to DLF under the Agreement. The Guarantors are alleged to be responsible for all amounts incurred as a result of the Corporate defendants’ default. There remains a balance due to DLF on the Agreement in the amount of $756,670.00, plus interest, costs, disbursements, and attorney’s fees. Despite DLF’s demands, the Corporate defendants have failed to remit the purchased amount due pursuant the Agreement. Moreover, the Guarantors are alleged to be responsible for all amounts incurred because of any breach of the Corporate defendants. There remains a balance due and owing to plaintiff on the Agreement in the amount of $53,143.80 plus interest, costs, and disbursements. DLF alleges that Corporate defendants have materially breached the Agreement are intentionally impeding and preventing DLF from receiving the proceeds of the receivables purchased. DLF also alleges that pursuant to the Agreement, the Guarantors personally guaranteed that they would be personally liable for any loss suffered by DLF. DLF contends that it is entitled to a judgment against the Guarantors based on their personal guarantee for the sum of $756,670.00, plus interest, costs, disbursements, and attorney’s fees. 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 [2d Dept 1990]). The essential elements of a cause of action to recover damages for breach of contract are “the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach (Cruz v. Cruz, 213 AD3d 805 [2d Dept 2023]). The elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it i s against equity and good conscience to permit the defendant to retain what is sought to be recovered (Sarker v. Das, 203 AD3d 973 [2d Dept 2022], citing Financial Assistance, Inc. v. Graham, 191 AD3d 952, 956 [2d Dept 2021]). In the case at bar, the only sworn testimony submitted by DLF in support of the motion was an affirmation of Jeffrey Zachter, its counsel, and an affidavit of Shmuel Serie (hereinafter Serie). Zachter’s affirmation contends that the facts in support of the motion are contained in the affidavit of Serie. Zachter’s affirmation demonstrates no personal knowledge of any of the transactional facts alleged in the 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 [2d Dept 2019], citing Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]). Serie’s affidavit is used to authenticate the Agreement which was allegedly breached by the defendants. Serie avers that he is the CFO of DLF and, as such, has personal knowledge of its business practices and procedures. He further avers that the factual allegations proffered in support of the motion for summary judgment are derived from his review of the plaintiff’s business records. He then refers to the only two exhibits attached to the motion, namely, the Agreement and a document denominated as a payment history. Serie does not aver that he was a signatory to the Agreement or that he participated in the execution of same. It is noted that paragraph 4 and 5 of Rider 2 to the Agreement addresses a prior balance owed by the Corporate defendants to DLF using the following language: “4. Authorization. Seller hereby authorizes Buyer to apply a portion of the Purchase Price due to Seller pursuant to the Agreement toward satisfaction of Seller’s obligation to pay the Prior Balance pursuant to Section 18 of the Agreement by deducting the amount of the Prior Balance from the Purchase Price prior to delivering it to Seller, and to forward the specific amounts owed by Seller to Buyer and/or the creditors listed in this Rider.” “5. No Reduction of Purchase Price. Seller hereby agrees that deduction of the Prior Balance from the Purchase Price shall not be deemed to reduce the Purchase Price.” Neither the complaint, nor the affirmation of plaintiff’s counsel, nor Serie’s affidavit mention the existence of a prior balance owed by the corporate defendants to the plaintiff, and or the plaintiff’s right to deduct that balance from the funds delivered to the defendants In fact, the complaint and the motion provide no information regarding the amount of funds that were provided to the corporate defendants pursuant to the Agreement. These facts alone raise material issues of fact regarding the plaintiff’s performance under the Agreement. Consequently, the plaintiff cannot make a prima facie showing of entitlement to judgment on its claim breach of the Agreement nor the guarantee Serie also refers to the payment history, annexed as exhibit B to his affidavit, as proof of the defendants’ default. 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 [2d Dept 2015]). As a general rule, the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records (Bank of N.Y. Mellon v. Gordon, 171 AD3d 197, 209 [2d Dept 2019]). However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business (id. at 209). Here, the payment history is submitted without explaining it source, or its meaning. It is neither self-explanatory nor self-admitting and there was an insufficient foundation for its admission as a business record. Moreover, Serie avers that the Corporate defendants closed a bank account and ceased payment authorizations for daily ACH payments under Bank Code RO2 constituting a default of the Agreement. Serie, however, proffered no business record reflecting this fact. Rather, it merely alleged the fact without proffering any documentary support. It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted (Citibank, N.A. v. Potente, 210 AD3d 861, 862 [2d Dept 2022]). Accordingly, evidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay (Bank of New York Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]). Serie’s averments regarding Bank Code RO2 constitutes inadmissible hearsay. In sum, DLF has failed to make a prima facie showing of entitlement to summary judgment on any of the claims it has asserted against the defendants. CONCLUSION The motion by plaintiff Diesel Funding LLC for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability as asserted against defendants RCI PLBG Inc., RCI PLBG Group Inc., Chase Mechanical Corp, Chris Chierchio, and Robert Dimiceli is denied. A copy of this decision and order, along with notice of entry, shall be served upon defendants and filed with the Court within 20 days of entry. The foregoing constitutes the decision and order of the Court. Dated: April 6, 2023
