The following numbered papers were used on this motion: Submitted by Plaintiff in Support of the Motion NYSCEF Document Numbers 16-37 Submitted by Defendants in Opposition to the Motion NYSCEF Document Numbers 39-43 Submitted by Plaintiff in Reply in Support of the Motion NYSCEF Document Numbers 46-47, 49-54 ORDER Upon the foregoing papers, having heard oral argument, and due deliberation having been had thereon, the within motion is determined as follows. This is an action commenced by Plaintiff, alleging breach of a contract by Defendant business to sell its future receivables to Plaintiff, otherwise known as a merchant cash advance contract. Plaintiff is moving for summary judgment on the causes of action in its complaint — breach of contract and breach of guarantee — and to dismiss Defendants’ affirmative defenses. Plaintiff alleges that it entered into a contract with Defendant business Bryan A Anthonys Design LLC d/b/a Bryan Anthonys (“Defendant business”) to purchase $374,750.00 of said Defendant’s future receivables. Defendants Edward Robert Glassman Jr and Amber Lynn Glassman are alleged to have personally guaranteed payment. Plaintiff alleges further that it performed its duties in the contract by remitting the sum of $250,000 less contractual fees to purchase the receivables. Plaintiff alleges that Defendant business breached the contract by preventing Plaintiff from receiving what it had purchased and by instructing its bank to refuse payment. Plaintiff’s summary judgment motion seeks to hold Defendants liable in the sum of $272,609.25 plus interest of 16 percent per annum from the date of default of October 12, 2023 plus costs and disbursements, or alternatively, in the amount of $215,587.50 plus attorney’s fees of either $10,175.00 or $53,896.88 plus interest of 16 percent per annum from the date of default of October 12, 2023 plus costs and disbursements. 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 issue of 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 initially submitted the affidavit of Eli Medina, a manager; an affirmation of counsel; and numerous exhibits, including what purport to be the contract, a domestic wire notification, an ACH return report, and a payment history. Defendants opposed Plaintiff’s motion for summary judgment through an affirmation of counsel. Among the arguments Defendants made were that the contract was in reality a usurious loan, that Plaintiff failed to meet its prima facie burden, and that Plaintiff failed to lay a proper foundation for any business records. In reply to Defendants’ opposition, Plaintiff submitted an affirmation of counsel; an affidavit of a person whose first and middle names are Ruslan Levy and whose last name is illegible, a custodian of Metropolitan Commercial Bank; and purported bank records. In order for business records to be admissible in evidence, either on a motion or at trial, they must meet the requirements mandated by law, as provided in CPLR 4518 and in case law. To be admissible in evidence, first, the records must be made in the regular course of business (see CPLR 4518 [a]). To be admissible in evidence, second, it must be the regular course of business to make such records (id.). To be admissible in evidence, third, the records must have been made at the time of the act or occurrence or within a reasonable time thereafter (id.). To be admissible in evidence, fourth, the records must be made by a person who has personal knowledge of the act or occurrence and is under a business duty to report it (see People v. Patterson, 28 NY3d 544, 550 [2016]; Matter of Leon RR, 48 NY2d 117, 123 [1979]; Johnson v. Lutz, 253 NY 124, 127- 128 [1930]. It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted (see Johnson v. Lutz, 253 NY 124; Bank of N.Y. Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]; Coolidge Capital LLC v. Marine Plus LLC, 81 Misc 3d 1206[A], 2023 NY Slip Op 51278[U] [Sup Ct, Kings County 2023]; Capybara Capital LLC v. Zilco NW LLC, 78 Misc 3d 1238[A], 2023 NY Slip Op 50476[U] [Sup Ct, Kings County 2023]). In this motion, laying aside any issues concerning the first three requisites, the fourth foundational element to establish the business records exception was not met. Mr. Medina, a manager of Plaintiff, attested in his affidavit (NYSCEF Doc No. 17) that he is the custodian of Plaintiff’s records and attached were copies of pages of records regarding Defendant business’s account. He had personal knowledge of how records were maintained and it is Plaintiff’s standard business practice to record and maintain all records within Plaintiff’s systems. Notably, Mr. Medina did not confirm that he had personal knowledge of the acts, events or conditions which were recorded in the business records. Mr. Medina based his assertion that Defendant business breached the contract by referring to the records. Yet he did not claim to have personal knowledge of the recordation of entries to that effect. Mr. Medina is relying on someone else’s recordation of the acts, events or conditions, and he stated that an employee or representative has such knowledge. Who that was is not identified nor is it attested that certain individuals were under a business duty with respect to any recorded acts, events or conditions. Plaintiff also submitted in reply an affidavit from Ruslan Levy, last name illegible (NYSCEF Doc No. 49). He attests to being a custodian of records of Metropolitan Commercial Bank. He attached pages of the bank’s records regarding Plaintiff’s account (NYSCEF Doc No. 50). He stated that an employee or representative of the bank recorded acts, events, and conditions. This Court is now confronted with affidavits of two people purporting to authenticate records which presumably are relevant to this case. However, there is nothing in any affidavit explaining the connection between Plaintiff and Metropolitan Commercial Bank and how the two sets of records relate to each other. Moreover, the records attached to the affidavit of Ruslan Levy, last name illegible, consume three pages. Ruslan Levy, last name illegible’s affidavit does not indicate whether these are all of Plaintiff’s account records, or whether there are others. In addition, the submitted ACH Return Report (NYSCEF Doc No. 25) submitted by Mr. Medina includes an effective entry date of September 18, 2023, and a report settlement date of September 18, 2024. The document was filed with the Court on January 4, 2024, so the Court fails to understand the significance of a settlement date in futuro. This is not explained. Based on the foregoing analysis, the Court finds that the business records submitted as exhibits in support of Plaintiff’s motion are inadmissible because they do not comport with the business records exception to the hearsay rule. The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of the contractual obligations, and damages resulting from the breach (see Guzman v. Ramos, 191 AD3d 644 [2d Dept 2021]). Absent the admissibility of the proffered business records, Plaintiff failed to establish Defendant business’s breach of contractual obligations. Further, insofar as damages are concerned, the Court is puzzled by the allegation in paragraph 31 of Mr. Medina’s affidavit: “MERCHANT made payments totaling $159,162.50 prior to breaching the Agreement, leaving a total balance of $215,587.50 plus costs and fees of $218,087.50 and a Default Fee of $2,500, leaving a total of $272,609.25 due to Plaintiff.” This math does not add up. This Court derives $436,175.00 as the sum of $215,587.50 plus $218,087.50 plus $2,500. Even if $159,162.50 is deducted from $436,175.00, the difference is $277,012.50, not $272,609.25. Counsel’s attempted explanation of the discrepancy during oral argument is found perplexing. Plaintiff, through its submissions, has failed to establish its entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see CPLR 3212 [b]; Smalls v. AJI Industries, Inc., 10 NY3d 733; Alvarez v. Prospect Hosp., 68 NY2d at 324), because it failed to establish prima facie that Defendant business committed a breach of contract. Ergo, it failed to establish prima facie that the individual Defendants breached a guarantee. The burden did not shift to the nonmoving parties, Defendants, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557). For the same reasons, that branch of Plaintiff’s motion to strike affirmative defenses has not been adequately established. Further, Plaintiff offered no argument with respect to specific affirmative defenses other than a half page in the reply memorandum of law (NYSCEF Doc No. 46). It was Plaintiff’s burden to explain individually why the affirmative defenses had no merit. Accordingly, it is hereby ORDERED that Plaintiff’s motion for summary judgment is DENIED. CPLR 5513 (a) provides: “Time 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.”
