Recitation in accordance with CPLR 2219 (a) of the papers considered on notice of motion filed on March 28, 2024, under motion sequence number one, by Global Merchant Cash, Inc (hereinafter plaintiff) for an order pursuant to CPLR 3212 granting it summary judgment on each of its causes of action asserted against Red Rock Credit Solutions LLC d/b/a Red Rock Credit Solutions (hereinafter the company defendant) and Christopher Aaron Burkett (hereinafter the individual defendant or guarantor). The motion is opposed. Notice of motion Affirmation in support Exhibits 1-5 Affidavit in support Statement of material facts Affirmation in opposition Counter Statement of material facts Affirmation in reply Exhibits A DECISION & ORDER BACKGROUND On August 30, 2021, plaintiff commenced the instant action for, inter alia, breach of contract by filing a summons with notice with the Kings County Clerk’s office (KCCO). On September 14, 2021, the defendants filed a notice of appearance and a demand for a complaint with the KCCO. On November 5, 2021, the plaintiff filed a complaint with the KCCO. On November 8, 2021, the defendants interposed and filed a joint answer with the KCCO. The complaint alleges thirty allegations of fact in support of four causes of action, namely, breach of contract, breach of a personal guaranty agreement, unjust enrichment, and conversion. The complaint alleges the following salient facts. On March 25, 2021, plaintiff and defendants entered into an agreement whereby plaintiff agreed to purchase the company defendant’s future receivables in the amount of $156,400.00 for the purchase price of $115,000.00. Pursuant to the agreement, the company defendant was to pay the plaintiff from 10 percent of the company defendant’s future receivables. By the same agreement Christopher Aaron Burkett executed a personal guarantee if the company defendant defaulted. On August 10, 2021, the company defendant allegedly defaulted as follows. The company defendant failed to direct payments to the plaintiff, by blocking plaintiff’s access to a designated bank account (hereinafter the designated account) from which it had agreed to permit plaintiff to withdraw the receivables, by failing to deposit receivables into the designated account, by disposing of its assets without plaintiff’s prior express written consent, and/or by depositing its receivables into a bank account other than the designated account. Based on the default, the defendants owe the plaintiff $74,724.34. Accordingly, there is now due and payable to plaintiff, by the defendants, the principal balance sum of $80,194.34, consisting of a contractual default fee of $5,000.00, UCC filing fees of $295.00, and an insufficient fund fee in the amount of $175.00, added to the $74,724.34, together with interest from August 10, 2021. LAW AND APPLICATION It is well established that summary judgment may be granted only when no triable issues of fact exist (Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325 [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 (Giuffrida v. Citibank, 100 NY2d 72, 81 [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, 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 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, 610 [2d Dept 1990]). In the case at bar, the only sworn testimony submitted by plaintiff in support of the motion was an affirmation of Yeshaya Gorkin, its counsel (hereinafter Gorkin), and an affidavit of Jay Keller (hereinafter Keller). Gorkin’s affirmation was based on review of the business records of the plaintiff. Gorkin’s affirmation, however, demonstrated 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], quoting Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]). Keller’s affidavit was used to authenticate the agreement which was allegedly breached by the defendants. Keller averred that he was the chief executive office of the plaintiff and, as such, has personal knowledge of its business practices and procedures. He further averred that the factual allegations proffered in support of the motion for summary judgment were derived from review of the plaintiff’s business records. He did not annex the plaintiff’s bank records or the bank records of the defendants in support of the motion. He then referred to the sole document attached to the motion, namely, the agreement. In reply to the defendants’ opposition papers, the plaintiff submitted a further affirmation of Gorkin and annexed an exhibit denominated as a payment history. A movant for summary judgment cannot “rely on evidence submitted for the first time in its reply papers in support of its motion” (L’Aquila Realty, LLC v. Jalyng Food Corp., 103 AD3d 692 [2d Dept 2013], citing GJF Constr. Corp. v. Cosmopolitan Decorating Co., Inc., 35 AD3d 535, 535 [2d Dept 2006]). The payment history was disregarded. It is noted that Keller did not aver that he was a signatory to the agreement or that he participated in the execution of same. Furthermore, he did not submit any documentary support of the amount the plaintiff purportedly provided to the defendants. This fact alone raises material issues of fact regarding the plaintiff’s performance under the agreement. Moreover, although the plaintiff contends that defendants performed certain acts constituting a breach of the agreement, the alleged acts were stated in the alternative and no documentary evidence was submitted to provide proof of any one of the alleged acts. “[I]t 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], quoting Bank of N.Y. Mellon v. Gordon, 171 AD3d 197, 205 [2d Dept 2019]). 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 N.Y. Mellon, 171 AD3d at 206). “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, 807 [2d Dept 2023], quoting Klein v. Signature Bank, Inc., 204 AD3d 892, 895 [2d Dept 2022]). Plaintiff’s evidentiary submission has failed to make a prima facie showing of entitlement to summary judgment on its claim that the business defendant breached the agreement. As a result, the plaintiff failed to establish that the obligation of the guarantor to guarantee the corporate defendant’s performance was triggered. “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 is against equity and good conscience to permit the defendant to retain what is sought to be recovered” (Sarker v. Das, 203 AD3d 973, 975 [2d Dept 2022], quoting Financial Assistance, Inc. v. Graham, 191 AD3d 952, 956 [2d Dept 2021]). A plaintiffs cause of action for unjust enrichment may not be maintained if a valid contract governing the subject matter exists. Under such circumstances, recovery in quasi contract for events arising out of the same subject matter are generally precluded (see CSI Group, LLP v. Harper, 153 AD3d 1314, 1317 [2d Dept 2017], citing EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 23 [2005]). Plaintiff’s claim for breach of contract is undisputedly based on the agreement. Consequently, plaintiff may not maintain a claim for unjust enrichment. Plaintiff’s fourth cause of action is for conversion. “To establish a cause of action to recover damages for conversion, a plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff’s rights” (Amid v. Del Col, 223 AD3d 698, 700 [2d Dept 2024], quoting RD Legal Funding Partners, LP v. Worby Groner Edelman & Napoli Bern, LLP, 195 AD3d 968, 970 [2d Dept 2021]). Plaintiff’s evidentiary submission did not show that the defendants exercised exclusive control over any specifically identifiable funds belonging to the plaintiff. Accordingly, the plaintiff’s motion is denied in its entirety without regard to the sufficiency of the defendants’ opposition papers (see Cugini v. System Lbr. Co., 111 AD2d 114, 115 [1st Dept 1985], citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). CONCLUSION The motion by plaintiff Global Merchant Cash, Inc for an order pursuant to CPLR 3212 granting it summary judgment on each of its causes of action asserted against defendants Red Rock Credit Solutions LLC d/b/a Red Rock Credit Solutions and Christopher Aaron Burkett is denied. The foregoing constitutes the decision and order of this Court. Dated: July 26, 2024
