The following numbered papers were used on this motion: NYSCEF Document Numbers 5-22.

Upon the foregoing papers, the Court having elected to determine the within motion on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part II (Motions & Special Proceedings), Subpart C (Appearances & Post-Order Matters), Section 6 (Personal Appearances) ("All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission."), and due deliberation having been had thereon,

It is hereby ORDERED as follows:

Plaintiff moves pursuant to CPLR 3212 for summary judgment in its favor against Defendants.

Plaintiff alleges that it entered into a contract with Defendant Paul Morley & Sons LLC/DBA: Lucy's Roadhouse to purchase $28,800.00 of Defendants' future receivables. Defendant Michael P. Morley is alleged to have personally guaranteed payment. Defendant Tayst Consulting LLC is alleged to have executed a cross-collateral addendum in which it agreed to be held liable. Plaintiff alleges further that it complied with its obligations by remitting the sum of $20,000.00 to purchase the receivables. Defendant Paul Morley & Sons LLC/DBA: Lucy's Roadhouse is alleged to have breached the contract on or about June 4, 2025, resulting in all Defendants now being liable in the sum of $32,620.00, comprised of $15,360.00 in unpaid [*2]receivables plus $17,260.00 in default fees and contractual penalties. (See NYSCEF Doc No. 6.)

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

The Court finds that on this motion for summary judgment, Plaintiff failed to meet its prima facie burden of entitlement to judgment as a matter of law. The evidence tendered in an attempt to show prima facie a breach of contract fails, principally because purported business records are introduced without a proper foundation for being admitted under the business record exception to the hearsay rule (see CPLR 4518; Johnson v Lutz, 253 NY 124 [1930]; Bank of NY Mellon v Gordon, 171 AD3d 197, 209 [2d Dept 2019]; Silverline Servs., Inc. v Associates of Boca Raton, Inc., 79 Misc 3d 1242[A], 2023 NY Slip Op 50853[U] [Sup Ct, Kings County 2023]; Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C4518:3).

Among the deficiencies in Plaintiff's evidentiary submission are the following:

• The purported wire transfer offered in NYSCEF Doc No. 10 in an attempt to establish performance by Plaintiff of the contract is neither authenticated by the maker nor by anyone associated with the financial institution of the initiator or that of the recipient.

• The purported payment ledger contained in NYSCEF Doc No. 11, submitted to document a breach by the merchant defendant, is not identified as a business record maintained by Plaintiff.

• The purported payment ledger contains entries referring to Automated Clearing House transactions yet the financial institutions which maintained accounts for the parties to the transfers is not identified and there are no affidavits of persons with knowledge at those financial institutions.

• The purported payment ledger contains "R01" and "FNX" code notations which are not explained.

• The purported payment ledger lacks identifying information as to merchant or purchaser.

• Plaintiff's supporting affidavit refers to a breach of contract date of on or around June 4, 2025, yet the purported payment ledger first "Returned Fee' date is May 14, 2025.

Clearly, Plaintiff is relying on records created or maintained by other entities. It has failed to properly authenticate them (see Prosperum Capital Partners LLC v Pamelas List LLC, 81 Misc 3d 1247[A], 2024 NY Slip Op 50175[U], *2 [Sup Ct, Kings County 2024]). "[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" (Bank of NY Mellon v Gordon, 171 AD3d at 205).

Moreover, it is noted that the complaint's allegation in paragraph 5 referring to a contract dated April 17, 2025 (see NYSCEF Doc No. 13) was denied by Defendants in the corresponding paragraph in the answer (see NYSCEF Doc No. 14). " 'The essential elements of a cause of [*3]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' (Investment Retrievers, Inc. v Fox, 150 AD3d 1090, 1090 [2017]). 'To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms' (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589 [1999])." (Tristate Cleaning Solutions, Inc. v Landco H & L, Inc., 204 AD3d 1064, 1065-1066 [2d Dept 2022].) The purported contract which Plaintiff relies on, dated April 17, 2025, has not been sufficiently proved by Plaintiff. The asserted authentication in the affidavit submitted in NYSCEF Doc No. 6 is conclusory (see Silverline Servs., Inc. v Associates of Boca Raton, Inc., 79 Misc 3d 1242[A], 2023 NY Slip Op 50853[U], *3 [Sup Ct, Kings County 2023]; American Express Centurion Bank v Teitelbaum, 36 Misc 3d 1229[A], 2012 NY Slip Op 51542[U], *5 [Sup Ct, Kings County 2012]).

In sum, since Plaintiff failed to establish, prima facie, its allegation that Defendant breached a contract to remit payments from future receivables sold for an upfront price, this Court must deny Plaintiff's motion for summary judgment. Plaintiff has failed to demonstrate its entitlement to judgment as a matter of law (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733; Alvarez v Prospect Hosp., 68 NY2d at 324). It has failed to establish the lack of material issues of fact in order to reach a determination on its claim for breach of a contract for a merchant cash advance in exchange for future receivables, and Defendants' evidence or lack of evidence in opposition is irrelevant (see Cugini v System Lbr. Co., 111 AD2d 114, 115[1st Dept 1985]; Prosperum Capital Partners LLC v Rose Beton Boutique LLC, 85 Misc 3d 1216[A]; 2025 NY Slip Op 50214[U] [Sup Ct, Kings County 2025]; Atipana Credit Opportunity Fund I, LP v Empire Restaurants AZ Corp., 80 Misc 3d 1208[A], 2023 NY Slip Op 50939[U] [Sup Ct, Kings County 2023]; AJ Equity Group LLC v Urban Bay Hous. Fund LLC, 80 Misc 3d 1207[A], 2023 NY Slip Op 50934[U] [Sup Ct, Kings County 2023]; Capybara Capital LLC v Zilco NW LLC, 78 Misc 3d 1238[A], 2023 NY Slip Op 50476[U] [Sup Ct, Kings County 2023]).

Plaintiff's motion is DENIED in its entirety.