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Flexibility Capital, Inc v. Highway Surfers LLC

Plaintiff's Evidence Did Not Qualify as a Business Record Exception to Hearsay

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The following numbered papers were used on this motion: Submitted by Plaintiff NYSCEF Doc No. 6: Notice of Motion NYSCEF Doc No. 7: Affidavit of Gina Monteforte in Support (“Monteforte aff”) NYSCEF Doc No. 8: Affirmation of Jeffrey Parrella in Support (“Parrella aff”) NYSCEF Doc No. 9: Exhibit A — Contract NYSCEF Doc No. 10: Exhibit B — Deposit Transaction NYSCEF Doc No. 11: Exhibit C — Payment History NYSCEF Doc No. 12: Exhibit D — Summons and Complaint NYSCEF Doc No. 13: Exhibit E — Answer NYSCEF Doc No. 14: Memorandum of Law in Support NYSCEF Doc No. 15: Affirmation of Service NYSCEF Doc No. 16: Request for Judicial Intervention DECISION AND ORDER This is an action commenced by the Plaintiff, alleging breach of a contract by the Defendant business to sell its future receivables to Plaintiff, otherwise known as a merchant cash advance contract (see NYSCEF Doc No. 9, complaint). Plaintiff is moving for summary judgment. Plaintiff Flexibility Capital, Inc. alleges that it entered into a contract with Defendant merchant Highway Surfers LLC to purchase $14,700.00 of said Defendant’s future receivables (see NYSCEF Doc No. 7, Monteforte aff 11). Defendant Ermina Begic is alleged to have personally guaranteed payment (see id. 12). Plaintiff alleges further that it performed its duties in the contract by remitting the sum of $10,000.00 minus a $400.00 origination fee to purchase the receivables (see id. 15). Plaintiff alleges that Defendant merchant breached the contract in the following manner: by failing to continue to make payments of receivables, by failing to deposit receivables into Plaintiff’s designated bank account, by depositing receivables into a different account than the designated one in the contract, and by blocking Plaintiff’s access to said Defendant’s designated bank account (see id. 16). Plaintiff’s summary judgment motion seeks to hold Defendants liable in the sum of $7,956.00, comprised of $5,121.00 in unpaid receivables plus $2,835.00 in fees (see id.

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