The following numbered papers were used on this motion: Submitted by Plaintiff in Support of Motion NYSCEF Doc No. 24: Notice of motion NYSCEF Doc No. 25: Derek M. Medolla, Esq. affirmation NYSCEF Doc No. 26: Exhibit 1, summons & complaint NYSCEF Doc No. 27: Exhibit 2, Sept. 8, 2023 order NYSCEF Doc No. 28: Answer NYSCEF Doc No. 29: Louis Calderone affidavit NYSCEF Doc No. 30: Exhibit A.1, agreement, Aug. 25, 2022 NYSCEF Doc No. 31: Exhibit A.2, agreement, Oct. 27, 2022 NYSCEF Doc No. 32: Exhibit B.1, Flagstar Bank ACH transaction, Aug. 24, 2022 NYSCEF Doc No. 33: Exhibit B.2, Flagstar Bank ACH transaction, Oct. 27, 2022 NYSCEF Doc No. 34: Exhibit C.1, transaction history, Aug. 31, 2022-Dec. 28, 2022 NYSCEF Doc No. 35: Exhibit C.2, transaction history, Nov. 3, 2022-Dec. 29, 2022 NYSCEF Doc No. 36: Exhibit D, transaction history-settled/returned, action dates Sept. 2, 2022-Feb. 1, 2023 NYSCEF Doc No. 37: Statement of material facts NYSCEF Doc No. 38: Memorandum of law Submitted by Defendants in Opposition to Motion NYSCEF Doc No. 40: Memorandum of law NYSCEF Doc No. 41: Christopher A. Hubbard affidavit NYSCEF Doc No. 42: Statement of counter facts NYSCEF Doc No. 43: Affirmation of service ORDER Upon the foregoing papers, having heard oral argument, and due deliberation having been had,1 the within motion is determined as follows. This is an action commenced by the plaintiff, alleging breach of a contract by the defendant business to sell its future receivables to the plaintiff, otherwise known as a merchant cash advance contract. Plaintiff is moving for summary judgment on the causes of action in its complaint. (See generally NYSCEF Doc No. 29, Calderone aff.) Plaintiff Vox Funding LLC alleges that it entered into a contract with Defendant business Pensare Group Inc. to purchase $131,100.00 of said Defendant’s future receivables ($117,300.00 in one contract and $13,800.00 in a second contract). Defendant Christopher A. Hubbard is alleged to have personally guaranteed payment. Plaintiff alleges further that it performed its duties in the contract by remitting a total sum of $95,000.00 ($85,000.00 plus $10,000.00) minus fees to purchase the receivables. (See id.) Plaintiff alleges that Defendant businesses breached the contract by failing to continue to make payments of receivables (see id.) Plaintiff’s summary judgment motion seeks to hold Defendants liable in the sum of a total of $95,225.31, comprised of $83,844.06 ($73,312.50 plus $10,531.56) in unpaid receivables plus $11,381.25 in default fees and/or contractual penalties (see id.). Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v. AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v. Prospect Hosp., 68 NY2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]). In support of Plaintiff’s motion, it submitted several exhibits, including what purport to be the contracts (see NYSCEF Doc Nos. 30, 31), proof of payment of the purchase prices (see NYSCEF Doc Nos. 32, 33), payment histories (see NYSCEF Doc Nos. 34, 35), and a rejected transactions history (see NYSCEF Doc No. 36). Defendants oppose Plaintiff’s motion for summary judgment. They do this in the affidavit of Defendant Hubbard (see NYSCEF Doc No. 41), a statement of counter facts (see NYSCEF Doc No. 42), and the memorandum of law of counsel (see NYSCEF Doc No. 40). Among the arguments Defendants have made are: (a) The contracts were in reality usurious loans (see generally NYSCEF Doc Nos. 41, 42). (b) Plaintiff failed to lay a proper foundation for any business records (see NYSCEF Doc No. 40
12-20). (c) No bank records were submitted to substantiate Plaintiff’s claims (see NYSCEF Doc No. 40 6). (d) They challenge the evidence submitted by Plaintiff regarding alleged payments from Plaintiff to Defendant business (see id.
