The following numbered papers were read on this motions: NYSCEF Document Numbers 9-25 ORDER Upon the foregoing papers, and the Court having elected to determine the within motion(s) on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.),” and due deliberation having been had thereon, It is hereby ORDERED as follows: PLAINTIFF Madison Advance LLC, (hereinafter “Madison Advance”) moves for summary judgment dismissing the complaint asserted against them by Defendants Design Lighting Group LLC, Hospitality Lighting, Inc., and Charles Austin Spiers Jr. (hereinafter “Defendants”). Plaintiff Madison Advance entered into an agreement with Defendants where Madison Advance agreed to purchase Defendants’ future receivables. Defendant and guarantor breached in that the company failing to turn over receivables and perform pursuant to the agreement, according to Plaintiff. CPLR 3212(b) provides that a summary judgment “motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” A Court may grant summary judgment in a proceeding when it has been established that no triable issue of fact exists. Summary judgment is designed to expedite all civil cases by eliminating from the trial calendar claims which can be properly resolved as a matter of law. (See Andre v. Pomeroy, 35 NY2d 361 [1974].) Here, Plaintiff’s merchant statement fails to meet the requirements set forth under CPLR 4518 (a). First, the business record must be made in the regular course of business. According to Chaim Wenger, a managing member of Plaintiff Madison Advance, “business records are maintained in Plaintiff’s systems” (NYSCEF Doc No. 10 8). Second, it must be the regular course of business to make such records. Wenger asserts that “it is Plaintiff’s standard business practice to record and maintain all records” (id.). Third, CPLR 4518(a) requires contemporaneity or that the record be made at the time of the act or within a reasonable time thereafter. Wenger is silent on this matter (id.). Fourth, a proper source of information is required. To meet this element, the person who made the record must have had actual knowledge of the event recorded or must have received their information from someone who had actual knowledge (see Johnson v. Lutz, 253 NY 124 [1930)]; Capybara Capital LLC v. Zilco NW LLC, 78 Misc. 3d 1238[A], 2023 NY Slip Op 50476[A] [Sup Ct, Kings County 2023]). Wenger states he is “responsible, among other duties, to maintain documents and records relating to accounts that are in active litigation or collections” (NYSCEF Doc No. 10 7), and makes no other statement regarding how he learned of the event other than basing his “personal knowledge of the facts of this action” on a “review of the exhibits attached” (id. 10). He further fails to establish whom at Madison Advance he gained this information from let alone whether they had actual knowledge of the event recorded (see Johnson, 253 NY 124; Capybara Capital LLC, 2023 NY Slip Op 50476[A]). It is further noted that the alleged payment history does not identity Plaintiff on it and there is no bank name (see Coolidge Capital LLC v. Marine Plus LLC. __ Misc 3d __ [A], 2023 NY Slip Op 51278[U] [Sup Ct, Kings County 2023]). Plaintiff Madison Advance failed to make out their prima facie claim on this motion for summary judgment. It did not establish as a matter of law that, based on business records, Defendants breached a contract. It is irrelevant that no opposition papers were submitted (see id.) Consequently, Plaintiff’s motion is DENIED. CPLR 5513 (a) provides: “The to take appeal as of right. An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.” Dated: December 1, 2023
