Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on March 11, 2025, under motion sequence number one, by Alternative Funding Group Corp (hereinafter plaintiff) for an order pursuant to CPLR 3212 granting summary judgment in favor of plaintiff as against Denise Dancie (hereinafter the individual defendant), and for an order pursuant CPLR 3215 granting a default judgment as against Dancie Enterprises Inc. (hereinafter the corporate defendant). The motion is opposed.

Exhibits 1-9

-One annexed exhibit

On September 7, 2023, plaintiff commenced the instant action by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office [*2](KCCO). On September 8, 2023, the plaintiff filed an affirmation of service of the commencement papers with the KCCO. On September 26, 2023, defendant the individual defendant interposed and filed an answer with the KCCO.

The answer filed by individual defendant purported to be an answer on behalf of herself and on behalf of corporate defendant.

On September 26, 2023, the plaintiff filed a rejection of that part of the answer which was purported to be on behalf of the corporate defendant with the KCCO. The rejection stated that it was pursuant to CPLR 321 (a) because the corporate defendant was required to appear by counsel.

The corporate defendant has not appeared in the action.

The verified complaint alleges thirteen allegations of fact in support of two denominated causes of action. The first cause of action is for breach of contract. The second cause of action is for breach of a guarantee agreement. The verified complaint alleges the following salient facts. Pursuant to a receivable purchase agreement (hereinafter the agreement) and personal guarantee dated May 18, 2023, the plaintiff purchased from the corporate defendant its future accounts receivable having a face value of $57,035.54. On that date the corporate defendant, in consideration of the sum of $47,529.62, sold, assigned, and transferred to the plaintiff a percentage of its future sales proceeds, up to an aggregate amount of $57,035.54. By the agreement, the individual defendant executed a personal guarantee if the corporate defendant defaulted on the agreement.

On August 18, 2023, the corporate 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 $51,770.03, as well as attorney's fees and interest.

The plaintiff seeks leave to enter a default judgment against the corporate defendant based on its failure to appear or interpose an answer to the complaint.

CPLR 3215 provides in pertinent part as follows:

(a) Default and entry. When a defendant has failed to appear, plead, or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him.

(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing (Katz v Blau, 173 AD3d 987, 988 [2d Dept 2019], citing Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2d Dept 2011]; CPLR 3215 [f]). CPLR 3215 (f) states specifically, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim are to be set forth in an affidavit made by the party (U.S. Bank N.A. v Simpson, 216 AD3d 1043, 1044-45 [2d Dept 2023], citing HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2d Dept 2009]).

Plaintiff must, among other things, demonstrate proper service of the commencement papers on the corporate defendant to obtain a default judgment. Ordinarily, this would be accomplished by the plaintiff's submission of an affidavit of service of the commencement papers in accordance with CPLR 306 (a) and (d). CPLR 306 (a) and (d) pertain to proof of service and to the form of proof, as follows:

(a) Generally. Proof of service shall specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner."

(d) Form. Proof of service shall be in the form of a certificate if the service is made by a sheriff or other authorized public officer, in the form of an affidavit if made by any other person, or in the form of a signed acknowledgment of receipt of a summons and complaint or summons and notice or notice of petition as provided for in section 312-a of this article.

On September 8, 2023, plaintiff's counsel filed an affirmation of service of the commencement papers which stated the following:

"David Fogel, an attorney duly admitted to practice law before the courts of the State of New York, affirms the truth of the following under the penalties of perjury: I am not a party to the above-entitled action, and I am over 18 years of age. That on September 8, 2023, deponent served the within Summons and Verified Complaint with Notice of Electronic Filing on the defendants at the below addresses by certified mail and by first-class mail, bearing the words 'Personal & Confidential.' Deponent deposited said wrapper with the requisite postage in a post office official depository under the care and custody of the United States Postal Service within the State of New York. The foregoing method of service is authorized by and made pursuant to the terms of the parties' subject contract.

DANCIE ENTERPRISES INC

[ ]

DENISE DANCIE

[ ]"^[FN1]

Here, the purported affirmation of plaintiff's counsel was not in compliance with CPLR 2106 as amended. It lacked the mandatory text set forth in the statute requiring the following [*3]recitation: "I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law."

Consequently, the plaintiff did not submit admissible proof of service of the commencement papers upon the corporate defendant. The branch of the motion seeking a default judgment against the corporate defendant is therefore denied without prejudice.

Plaintiff seeks an order pursuant to CPLR 3212 granting summary judgment against the individual defendant. The individual defendant answered the verified complaint.

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 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 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 v Grasso, 50 AD3d 544, 545, citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 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 Anthony Marquez, its managing partner. 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 Anthony Marquez 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 corporate defendant. Marquez avers that the purchase price for the future receivable was applied in its entirety to prior debt owed by the corporate defendant. He did not, however, provide any evidence of that debt.

"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 [*4]these elements as a matter of law. Here, the plaintiff provided no admissible evidence demonstrating that it performed its part of the agreement by paying the corporate 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. Nor did the plaintiff prevail on its motion for a default judgment against the corporate defendant.

Inasmuch as the plaintiff did not make prima facie showing that the corporate 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 1985]).

The branch of the motion by Alternative Funding Group Corp. for an order pursuant to CPLR 3215 granting a default judgment in favor of plaintiff as against defendant Dancie Enterprise Inc, for breach of contract is denied.

The branch of the motion by Alternative Funding Group Corp for an order pursuant to CPLR 3212 granting summary judgment in favor of plaintiff as against the defendant Denise Dancie for breach of a guarantee agreement is denied.

The foregoing constitutes the decision and order of the Court.