Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on May 22, 2024, under motion sequence number one, by Prosperum Capital Partners LLC d/b/a Arsenal Funding (hereinafter plaintiff) for an order pursuant to CPLR 3212 seeking an order granting summary judgment in its favor and against Rose Beton Boutique LLC d/b/a Rose Beton Boutique (hereinafter the LLC defendant) and Kendra Williams (hereinafter collectively defendants). The motion is unopposed.

Exhibit 1-6

Exhibit 5.1^[FN1]

On September 19, 2023, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On October 13, 2023, the defendants interposed and filed a joint verified answer with the KCCO.

The verified complaint alleges fourteen allegations of fact in support of two denominated causes of action. The first is for breach of contract and the second is for breach of a guaranty agreement. The verified complaint alleges the following salient facts. Pursuant to a receivable purchase agreement (hereinafter the agreement) and personal guaranty dated June 23, 2023, the plaintiff purchased from the LLC defendant its future accounts receivable having a face value of $14,900.00. On that date the LLC defendant, in consideration of the sum of $10,000.00, sold, assigned, and transferred to plaintiff seventeen (14%) percent of its future sales proceeds, up to an aggregate amount of $14,900.00. By the agreement, Kendra Williams executed a personal guarantee if the LLC defendant defaulted on the agreement.

On July 6, 2023, the LLC defendant allegedly defaulted under the agreement by causing the receivables to be deposited into a separate account not designated in the agreement, by blocking the payment due to plaintiff so that plaintiff could not collect the amount of receivables due, and/or by preventing the plaintiff from collecting the amount due to non-sufficient funds, or by otherwise failing to pay, and/or by preventing the plaintiff from collecting the amount due pursuant to the payment schedule in the agreement, and thereby defaulting under the terms of the agreement, or by otherwise violating a material term which constituted an event of default.

The plaintiff claims that there is now due and payable to the plaintiff, by the defendants, the principal balance sum of $ 24,935.51, as well as attorney's fees and interest.

The defendants answered the verified complaint, but did not submit opposition to the instant motion. However, "[a] summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion (i.e., 'defaulted')" (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 278 n [1st Dept 2006], citing Vermont Teddy Bear Co., v 1-800 Beargram Co., 373 F3d 241 [2d Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the . . . court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law"]; see Cugini v System Lumber Co., Inc., 111 AD2d 114 [1st Dept 1985] ["A movant's failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers"]).

It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [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 [*2]matter of law by presenting evidence in admissible form demonstrating the absence of material issues of fact (Giuffrida v Citibank Corp., 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, 1063 [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'" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008], quoting CPLR 3212 [b]. "Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion" (People ex rel. Spitzer, 50 AD3d at 544, citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990].

In the case at bar, the only sworn testimony submitted by the plaintiff in support of the motion was the affirmation of David Fogel, its counsel (hereinafter Fogel), and an affidavit of Marlen Kruzhkov, its chief legal officer (hereinafter Kruzhkov). Fogel's affirmation 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]).

It is noted that Kruzhkov verified the complaint in the instant action. The plaintiff's evidentiary submission did not demonstrate that the agreed upon purchase price was actually paid to the LLC defendant. Kruzhov averred that annexed as exhibit 5 to the motion was proof of the plaintiff's funding of the purchase price. The annexed document, however, contained only two lines and redactions within those lines. The document contained a typed entry stating the word "checking" and the amount of $9,000.00 and nothing else. On September 26, 2024, the plaintiff filed a document annexed as exhibit 5.1. That document was denominated as "supplemental proof of funding". This two-page document was also filled with redactions and contained a typed entry stating the word "checking" and the amount of $9,000.00. Neither one of the provided documents was explained, nor authenticated, nor probative of anything.

"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]).

To prevail on the instant motion, it was incumbent upon the plaintiff to prove each of these elements as a matter of law. The plaintiff provided no admissible evidence demonstrating that it performed its part of the agreement by paying the LLC defendant the agreed-upon purchase price. Consequently, the plaintiff did not meet its burden of demonstrating as a matter of law that the defendants breached the agreement. Inasmuch as the plaintiff did not make a prima facie showing that the LLC defendant breached the agreement, the obligation of the guarantor was not triggered. As a result, the plaintiff also failed to show that the guarantor breached the agreement. The motion is therefore denied without regard to the sufficiency, or lack thereof, of the opposing papers (see Cugini v System Lbr. Co., 111 AD2d 114, 115 [1st Dept [*3]1985]).

The branch of the motion by Prosperum Capital Partners LLC D/B/A Arsenal Funding for an order pursuant to CPLR 3212 granting summary judgment in its favor on its causes of action for breach of contract and breach of a guaranty agreement as asserted against the defendants Rose Beton Boutique LLC d/b/a Rose Beton Boutique and Kendra Williams is denied.

The foregoing constitutes the decision and order of the Court.