Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on December 4, 2024, under motion sequence number three, by Mantis Funding (hereinafter plaintiff) for an order pursuant to CPLR 3212 granting summary judgment on the causes of action asserted against JMH Transport LLC (hereinafter the LLC defendant) and Jairo Holguin a/k/a Jairo Juli Holguin Florentino (hereinafter the individual defendant) (collectively the defendants). The motion is unopposed.

Exhibits A-B

Exhibits C-F

On December 30, 2021, plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's office (KCCO). The complaint alleges twenty-five allegations of fact in support three denominated causes of action, namely, breach of contract, [*2]breach of a personal guarantee, and unjust enrichment.

On January 28, 2022, the LLC defendant interposed and filed an answer to the complaint with the KCCO.

The individual defendant has not appeared in the action.

The complaint alleges the following salient facts, among others. On November 2, 2021, plaintiff and defendants entered into an agreement (hereinafter the agreement) whereby plaintiff agreed to purchase the LLC defendant's future receivables in the amount of $100,250.00. The LLC defendant agreed to have one account approved by plaintiff (hereinafter the bank account) from which the LLC defendant authorized plaintiff to make daily withdrawals until the purchased amount of the future receivables was paid in full. Plaintiff remitted the purchase price for the future receivables to the LLC defendant as was agreed upon. The individual defendant agreed to guarantee all amounts owed to the plaintiff from the LLC defendant upon a breach in performance by the LLC defendant.

The LLC defendant stopped making its payments to the plaintiff and breached the agreement by intentionally impeding and preventing plaintiff from making the agreed upon ACH withdrawals from the bank account while conducting regular business operations. The LLC defendant made payments totaling $20,285.00, leaving a balance of $89,425.00 and, pursuant to the agreement, the LLC defendant incurred "a blocked account fee" in the amount of $5,000.00. Despite due demand, the LLC defendant and the individual defendant have failed to pay the amounts due and owing to the plaintiff under the agreement, leaving a balance due and owing to plaintiff on the agreement in the amount of $94,425, plus interest, costs, disbursements, and attorney's fees.

By notice of motion, filed on February 17, 2022, under motion sequence number one, the plaintiff sought an order pursuant to CPLR 3212 granting it summary judgment on the causes of action asserted against the defendants. This was the plaintiff's first motion for summary judgment. By order dated May 9, 2024, the Court denied the motion, without regard to the lack of opposition papers, finding that the plaintiff's evidentiary submission was deficient. The Court found that the plaintiff provided no proof it funded the purchase price of the future receivables, such as a wire transfer, cancelled check, or other admissible evidence. Accordingly, the Court found that the plaintiff failed to establish its own performance under the agreement. The Court further found that the plaintiff failed to show that the obligation of the guarantor was ever triggered (see Fundfi Merchant Funding, LLC v JDM Elec. LLC, 82 Misc 3d 1222(A) [Sup Ct, Kings County 2024]).

When a motion for summary judgment is denied, a movant can move for renewal or reargument pursuant to CPLR 2221, provided certain criteria are met (see CPLR 2221 [a]). Pursuant to CPLR 2221 (a) "[a] motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it[.]" Among other requirements, a motion for leave to reargue and a motion for leave to renew must be "identified specifically as such" (see CPLR 2221 [d] [1]; see CPLR 2221 [e] [1]).

In the instant motion, the movant does not seek permission from the Court pursuant to CPLR 2221 for leave to renew or reargue a prior motion. There are no indicia in the plaintiff's notice of motion or motion itself that it seeks reargument or renewal. Instead, the instant motion [*3]presents as a newly filed summary judgment motion. In the affirmation of plaintiff's counsel, the movant does acknowledge that the instant motion was made before.

"[T]here is a 'general proscription against successive summary judgment motions'" (Oppenhein v Village of Great Neck Plaza, Inc., 46 AD3d 527, 528 [2d Dept 2007], quoting Lapadula v Kwok, 304 AD2d 798, 798 [2d Dept 2003]). "Successive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification." Jones v 636 Holding Corp., 73 AD3d 409, 409 (1st Dept 2010); see Landis v 383 Realty Corp., 175 AD3d 1207, 1207 (1st Dept 2019).

"Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts" (Graham v City of New York, 136 AD3d 747, 756 [2d Dept 2016]. However, "[s]uccessive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance." Wells Fargo Bank, N.A. v Osias, 205 AD3d 979, 982 [2d Dept 2022], quoting Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020 [2d Dept 2020]).

In the case at bar, the instant motion does not fit within the "'narrow exception' to the successive summary judgment rule" (see Wells Fargo Bank, N.A., 205 AD3d at 981-982). The movant's prior motion was denied for its failure to provide sufficient evidence in admissible form to make a prima facie showing of entitlement on any of its claims. The Court's decision on the movant's first summary judgment motion was not meant to be an exhaustive list of the deficiencies found therein. The movant is now attempting to provide additional detail, de facto, considering the Court's prior decision.

"Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" (Hillrich Holdings Corp. v BMSL Mgt., LLC, 175 AD3d 474, 475 [2d Dept 2019]). Here, the movant does not offer any good cause, justification, or excuse for failing to include evidence that it funded the purchase price for the LLC defendant's future receivables, in its prior motion. The movant fails to establish that the evidence it submits in support of the instant motion for summary judgment was "not available to it when it previously moved for summary judgment and could not have been submitted on its prior motion" (see Hillrich Holdings Corp., 175 AD3d at 475).

The successive motion by plaintiff Mantis Funding for an order pursuant to CPLR 3212 granting summary judgment on the causes of action asserted against defendants JMH Transport LLC and Jairo Holguin a/k/a Jairo Juli Holguin Florentino is denied.

The foregoing constitutes the decision and order of this Court.