Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on June 2, 2025, under motion sequence number one, by Syndicate Group USA Inc. (hereinafter the plaintiff) for an order pursuant to CPLR 3212 granting summary judgment in its favor on the claims asserted against Mission Mechanical LLC (hereinafter the LLC defendant) and Marcus Harwell a/k/a Marcus Andrew Harwell (hereinafter the individual defendant) (collectively the defendants). The motion is opposed.

Exhibits A-F

On April 8, 2025, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On April 25, 2025, the defendants interposed and filed a joint answer with the KCCO.

The verified complaint alleges nineteen allegations of fact in support of two causes of action, namely breach of contract and 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 December 4, 2024, the plaintiff purchased from the LLC defendant its future accounts receivable having a face value of $164,890.00. By the agreement, Marcus Harwell executed a personal guarantee if the LLC defendant defaulted on the agreement.

On March 13, 2025, the LLC defendant materially breached the terms of the agreement by changing the designated bank account without plaintiff's authorization, by placing a stop payment on plaintiff's debits to the account, or by otherwise taking measures to interfere with plaintiff's ability to collect the future receivables. The plaintiff demanded repayment of money paid under the agreement. The LLC defendant failed and refused to pay the sums due under the agreement. The plaintiff made demand upon the individual defendant to pay the outstanding balance due based on the guarantee. The individual defendant failed and refused to do. The plaintiff claims that there is now due and payable to the plaintiff, by the defendants, the principal balance sum of $141,463.49, with interest thereon from March 13, 2025, plus its costs and expenses of collection, including reasonable attorney's fees.

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 any 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], citing Alvarez, 68 NY2d at 324). 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 [*2]Grasso, 50 AD3d at 544, 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 Rickin Desai, Esq., its counsel (hereinafter Desai), and an affidavit of Chase Steinberg, a representative of the plaintiff (hereinafter Steinberg). Desai'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]).

The verified complaint did not state the amount the plaintiff paid for the LLC defendant's future receivables under the agreement. The agreement was annexed as exhibit A to the verified complaint. According to the agreement, the purchase price for the LLC defendant's future receivable was $110,000.00. The agreement further provided that the plaintiff would collect 22% of the LLC defendant's weekly receipts until the total amount of the future receivables of $164,890.00 was fully paid.

Steinberg also averred that on December 4, 2024, the plaintiff promptly performed under the agreement by wiring the purchase price, less the agreed-upon fees of 9.09% of the purchase price in the amount of $10,000.00 and balance transfer in the amount of $49,465.00, for a total payment of $50,635.00. Steinberg averred that annexed as exhibit B to the motion was proof of the plaintiff's funding of the purchase price reflected in a wire transfer. The wire transfer was for $50,635.00 which was the total amount the plaintiff allegedly paid to the LLC defendant toward the purchase price of $110,890.00. However, the motion papers contained no admissible evidence explaining the $49,465.00 deduction from the purchase price. The deduction was completely unsupported.

"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 LLC defendant 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 1985]).

The motion by plaintiff Syndicate Group USA Inc. for an order pursuant to CPLR 3212 granting summary judgment in its favor on the claims asserted against Mission Mechanical LLC and Marcus Harwell a/k/a Marcus Andrew Harwell is denied.

The foregoing constitutes the decision and order of this Court.