Before the Court is the motion submitted by MCA Servicing Company ("MCA" or "Plaintiff") pursuant to CPLR § 2221(d)-(e) to reargue and/or renew the decision and order of this Court dated April 23, 2024, which denied summary judgment against each of the above captioned Defendants. Defendants oppose the motion. The Court has read and considered NYSCEF documents 59-69 in deciding the motion.

On June 8, 2023, Defendant Nicholas Campbell Rahming entered into a Revenue Purchase Agreement ("RPA") with MCA on behalf of his company, Nic's Painting, LLC ("Merchant"). Mr. Rahming also personally signed the agreement as guarantor. Per the terms of the RPA, Merchant sold $100,750.00 of its future receivables to MCA for $65,000.00. Plaintiff alleged that Defendants breached the RPA "by failing to remit to Plaintiff the Plaintiff's share of Future Receivables" (Complaint, Doc. 1 ¶ 19.). MCA alleged that Defendant remitted $67,569.00 of the receivables purchased by Plaintiff, leaving a balance of unremitted receivables in the amount of $33,181.00. (Id. ¶ 12).

The action was commenced by way of a Summons and Complaint filed on October 3, 2023. In addition to the balance of $33,181.00, Plaintiff also alleged that Defendants owed $490.00 in bounced check fees, $3,000.00 for a default fee, and $9,954.30 in attorneys' fees, for a total of $46,625.30. On October 26, 2023, defense counsel filed an answer to the complaint on behalf of the corporate Merchant and the personal guarantor. On January 11, 2024, Plaintiff moved for summary judgment. On January 24, 2024, Defendants filed opposition, which included the unsigned affidavit of Defendant Rahming. On January 27, 2024, Defendant uploaded the sworn affidavit. In the Decision and Order of April 23, 2024, the Court found that a material fact remains at issue, that is, whether Plaintiff was in breach of its ongoing obligations under the contract when Defendant failed to make a weekly payment on September 1, 2023.

Plaintiff now moves to reargue and reconsider based on the dicta in the remainder of the Decision and Order, in which the Court expressed its concern about the validity of the underlying contract. Plaintiff argues that similar agreements have been found to be valid in hundreds of other cases. Plaintiff argues that four of the other Supreme Court judges in Rockland have rejected the defense of usury in the scores of Merchant Cash Advance matters that come before the Rockland County Supreme Court parts. Plaintiff argues the Court impermissibly considered facts outside the record and its own independent knowledge in denying the summary judgment motion. Plaintiff argues that Defendant Rahming's affidavit contained only conclusory allegations, which failed to raise an issue of material fact to rebut Plaintiff's prima facie showing, thereby entitling Plaintiff to a grant of summary judgment. [*2]Plaintiff argues that Defendant Rahming failed to provide written evidence of his attempt to reconcile or of his decline in revenue. Plaintiff argues that Defendant did not establish the date of his brother's death. Finally, Plaintiff quotes from the Court's order, claiming that this Court found that Plaintiff had established its prima facie case.

In opposition, Defendants argue that Plaintiff failed to demonstrate that any fact or law was overlooked or misapprehended. Defendants argue that the Court correctly denied summary judgment to Plaintiff. Defendants argue that Plaintiff's affiant lacked personal knowledge about Defendants' efforts to obtain a reconciliation. Defendants argue that Plaintiff breached the RPA prior to Defendants' failure to remit a payment, thereby precluding Plaintiff from bringing a claim under the contract. Defendants argue that Plaintiff failed to sustain its prima facie burden, and points out that a Plaintiff cannot meet its initial burden on a motion for summary judgment by identifying gaps in the non-movant's proof. In the alternative, Defendants argue that summary judgment was properly denied because Defendants' submissions sufficiently raised material issues of fact.

On reply, Plaintiff argues that this Court overlooked the decisions of numerous trial courts and the Appellate Division Fourth Department that have found the RPA to be an enforceable agreement. Plaintiff argues that "once an RPA funding provider, like Plaintiff, establishe[s] that the written contract is what it says—a purchase—the burden on summary judgment shifted to the financing recipient to raise an issue of fact demonstrating that the RPA was treated as a loan, and mere conclusions or unsubstantiated allegations in that respect will not suffice." Plaintiff again points out that Defendants submitted no evidence that they submitted a written request to reconcile. Plaintiff also reiterates that Defendants did not submit proof of a decline in receivables.

On a motion to reargue per CPLR § 2221(d), the proponent must identify matters of fact or law that were overlooked or misapprehended by the court in its prior determination. See Schneider v. Solowey, 141 AD2d 813, 813 (2d Dept. 1988) ("The granting of a motion for reargument is within the sound discretion of the court which decided the prior motion, provided the movant shows that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision."). A motion to reargue is not an opportunity for an unsuccessful litigant to reargue issues previously decided, or to present new arguments in support of their position. See Jaspar Holdings, LLC v. Gotham Trading Partners #1, LLC, 186 AD3d 582, 584 (2d Dept. 2020).

As a preliminary matter, Plaintiff in incorrect in its repeated claim that this Court determined that Plaintiff had established its prima facie case, see Pl. Mem. of Law at 1, 17 (Doc. 64). This Court made no such determination in the Decision and Order of April 23, 2024. The language quoted by Plaintiff, "Defendants do not deny that Merchant failed to make the weekly payment starting on September 1, 2023" was the first half of sentence, which continued, "but they do argue that Plaintiff breached the agreement first by failing to give them a chance to reconcile so that their payment accurately reflected l0% of their daily receipts." The Court specifically did not find that Plaintiff established a prima facie case because the issue of Plaintiff's breach is live.

Further, per the RPA, failure to pay is not, in and of itself, a breach by Defendant. See Doc. 2, RPA at 1, 2nd paragraph ("Merchant is selling a portion of a future revenue stream to MCA at a discount, and is not borrowing money from MCA, therefore there is no interest rate or [*3]payment schedule and no time period during which the Purchased Amount must be collected by MCA. . . . Merchant and Guarantor(s)(s) [sic] are only guaranteeing their performance of the terms of this Revenue Purchase Agreement, and are not guaranteeing the payment of the Purchased Amount.") (emphasis added).

Plaintiff acknowledges that Defendant supplied an affidavit in which he specifically claimed that he was not given the opportunity to reconcile. However, Plaintiff argues that Defendant's conclusory assertion in his affidavit was insufficient to raise an issue of fact. Plaintiff argues that Defendant failed to submit proof that the request to reconcile was made in writing or that Defendant provided Plaintiff with Merchant's financial statements to show a decline in revenue.

In deciding a motion for summary judgment, the reviewing court should accept the opposing party's evidence as true, see Hotopp Assocs. v. Victoria's Secret Stores, 256 AD2d 285, 286-287 (1st Dept. 1998), and give the opposing party the benefit of all reasonable inferences. See Negri v. Stop & Shop, 65 NY2d 625, 626 (1985). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 (1978).

Here, Defendant effectively raised issues of fact through his sworn statement. (Doc. 46). In particular, he raised an issue about his ability to reconcile the amount of the weekly payment to match his actual receivables. If Plaintiff did not allow Defendant to reconcile after a request to do so, then Plaintiff may be in breach of its obligations under the RPA. Because Plaintiff could not eliminate this issue of fact, Plaintiff did not establish its prima facie entitlement to summary judgment.

Most of the issues raised by Plaintiff go to the enforceability of the agreement. Plaintiff argues repeatedly that this Court overlooked non-binding decisions issued by other courts. Plaintiff also argues that the issues of fact in Defendant's affidavit are not sufficient to challenge the enforceability of the RPA as a usurious loan or an unconscionable agreement. However, the basis for the denial of the motion for summary judgment was the issue of fact raised by Defendant as to the availability of reconciliation in this particular case, which goes to whether Plaintiff established a prima facie case of breach of contract, not whether the agreement itself is enforceable.

Therefore it is

ORDERED, that Plaintiff's motion for reargument and renewal is GRANTED; and it is further

ORDERED, that upon reconsideration, the Court finds that denial of summary judgment was appropriate, and therefore the motion to vacate the prior decision is DENIED; and it is further

ORDERED, that all counsel shall appear for a pretrial conference on the date to be provided in a separate court notice.