Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on October 10, 2025, under motion sequence number two, by DLP Funding, LLC (hereinafter plaintiff) for an order pursuant to CPLR 3212 granting summary judgment in its favor on its complaint against East Winds Consulting LLC d/b/a East Winds Consulting LLC (hereinafter the company defendant) and Melissa C Wolcott-Wind (hereinafter the individual defendant) (collectively the defendants), jointly and severally, for the sum certain of $28,540.00 plus interest at the statutory rate (9%) from April 28, 2021, plus costs and disbursements of this action and pursuant to CPLR 3211 dismissing defendants' affirmative defenses. The motion is unopposed.

Exhibits 1-2

On May 4, 2021, plaintiff commenced the instant action for, inter alia, breach of contract by filing a summons with notice with the Kings County Clerk's office (KCCO).On June 5, 2021, the defendants filed a demand for a complaint with the KCCO. On June 5, 2021, the plaintiff filed a verified complaint with the KCCO. On January 12, 2024, the plaintiff filed an amended verified complaint with the KCCO.

On February 17, 2024, the defendants joined issue by interposing and filing a joint answer with the KCCO. The defendants' answer included thirty-six affirmative defenses.

The amended verified complaint alleges thirty allegations of fact in support of four denominated causes of action, namely, breach of contract, breach of a personal guaranty agreement, unjust enrichment, and conversion.

The amended verified complaint alleges the following salient facts, among others. On April 8, 2021, plaintiff and defendants entered into an agreement whereby plaintiff agreed to purchase the company defendant's future receivables in the amount of $28,500.00. The purchase price for these receivables was $19,000.00 (hereinafter the purchase price), to be paid to the plaintiff from 30% of the company defendant's daily revenue. On April 8, 2021, the plaintiff paid the company defendant the purchase price. On April 21, 2021, the company defendant failed to direct company defendant's payments to plaintiff, by among other things, blocking plaintiff's access to a designated bank account (hereinafter the designated account) from which the company defendant agreed to permit plaintiff to withdraw receivables.

On April 21, 2021, the plaintiff determined that the company defendant was in breach of contract. The company defendant owes plaintiff $25,650.00 of the purchased amount. Therefore, the plaintiff has been damaged by the company defendant's breach of contract in the sum of $28,540.00, with interest from April 21, 2021.

In addition, the individual defendant agreed to guarantee all amounts owed to plaintiff from company defendant upon a breach in performance by company defendant.

There is no 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, 244 [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"], and citing Cugini v System Lumber Co., Inc., 111 AD2d 114, 115 [1st Dept 1985]).

It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hospital, 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, 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 party opposing the motion for summary judgment to produce evidentiary proof in admissible form 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, 50AD3d 535, 544 [1st Dept 2008], quoting CPLR 3212 [b]). Furthermore, all the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]).

"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], citing Klein v Signature Bank, Inc., 204 AD3d 892, 895 [2d Dept 2022]).

In the case at bar, the only sworn testimony submitted by the plaintiff in support of the motion was an affirmation of Yeshaya Gorkin, its counsel (hereinafter Gorkin), and an affirmation of Levy Cohen (hereinafter Cohen). Gorkin's affirmation set forth the procedural history of the action, but offered no evidence regarding any of the allegations of fact in the amended verified 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], citing Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]).

Cohen averred that he was the plaintiff's chief executive officer, that he had personal knowledge of the plaintiff's business practices and procedures, and that he reviewed the plaintiff's business records to allege the facts in support of the motion. Cohen then referred to two documents attached to the motion, namely, the agreement and a document denominated as a transaction history.

It is noted that Cohen did not aver that he was a signatory to the agreement or that he participated in the execution of same. Cohen averred that the plaintiff paid the company defendant the agreed upon purchase price for the company defendant's future receivables. Cohen did not allege personal knowledge that it was actually paid. Nor did he provide any documentary evidence, such as a cancelled check or wire transfer, to demonstrate that the purchase price was actually paid. Nor did he point to any other proof, such as an admission by the defendants, that it was actually paid.

In sum, by not providing documentary proof that the purchase price was actually paid, the plaintiff did not eliminate all material issues of fact regarding its own performance under the agreement. As a result, the plaintiff did not make a prima facie showing of entitlement to judgment on its claims for breach of the agreement by the company defendant. By failing to show that the company defendant breached the agreement, the obligation of the individual defendant to guarantee the performance of the company defendant was never triggered.

"The elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (Sarker v Das, 203 AD3d 973, 975 [2d Dept 2022], citing Fin. Assistance, Inc. v Graham, 191 AD3d 952, 956 [2d Dept 2021]).

A plaintiff's cause of action for unjust enrichment may not be maintained if a valid contract governing the subject matter exists (see CSI Group, LLP v Harper, 153 AD3d 1314, 1317 [2d Dept 2017]). Under such circumstances, recovery in quasi contract for events arising out of the same subject matter are generally precluded (id., citing EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 23 [2005], and citing Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]). Plaintiff's claim for unjust enrichment is premised on the defendants' breach of the parties' April 8, 2021, agreement. Consequently, the plaintiff may not maintain a claim for unjust enrichment.

Under New York law the elements of conversion are: (1) that the plaintiff "has a right to possession" of the property converted; (2) the defendant's possession of the property was unauthorized; (3) the defendant acted to exclude the rights of the lawful owner of the property; (4) the property is "specifically identifiable"; and (5) the defendant is obligated to return the property (Key Bank of NY v Grossi, 227 AD2d 841, 843 (3d Dept 1996).

To the extent that the plaintiff contends that it was entitled to the corporate defendant's receivables which the corporate defendant wrongfully withheld, the plaintiff failed to establish the corporate defendant's breach. Furthermore, the plaintiff did not make a prima facie showing that the defendants had unauthorized possession of specifically identifiable property belonging to the plaintiff.

In sum, the plaintiff failed to make a prima facie showing of entitlement to summary judgment on any of the claims it has asserted against the defendants. Accordingly, the motion is denied regardless of the sufficiency, or lack thereof, of opposing papers (Cugini v Sys. Lbr. Co., 111 AD2d 114, 115 [2d Dept 1985]).

Plaintiff has moved for an order striking all the defendants' affirmative defenses pursuant to CPLR 3211 (b). On February 17, 2024, the defendants filed a joint answer which included thirty-six affirmative defenses.

CPLR 3211 (b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). "On a motion pursuant to CPLR 3211 (b), the court should apply the same standard it applies to a [*2]motion to dismiss pursuant to CPLR 3211 (a) (7), and the factual assertions of the defense will be accepted as true" (Wells Fargo Bank, N.A. v Rios, 160 AD3d 912, 913 [2d Dept 2018]). "Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed" (id.).

As previously indicated, the defendants did not submit opposition to the instant motion. With respect to the defendants' first affirmative defense, alleging failure to state a cause of action, "no motion lies under CPLR 3211(b) to strike this affirmative defense as this amounts to an endeavor by the plaintiff to test the sufficiency of [its] own claim" (Lewis v US Bank N.A., 186 AD3d 694, 697 [2d Dept 2020]).

In a memorandum of law, the plaintiff asserted, among other things, that the defendants' thirty-six affirmative defenses were without merit and should be dismissed. With respect to the remaining thirty-five affirmative defenses, they are struck as abandoned based on the defendants' failure to address them in opposition to the plaintiff's motion for summary judgment (Medina v 1277 Holdings, LLC, 234 AD3d 839 [2d Dept 2025]).

The branch of the motion by DLP Funding, LLC for an order pursuant to CPLR 3212 granting summary judgment in its favor on its complaint against East Winds Consulting LLC d/b/a East Winds Consulting LLC and Melissa C Wolcott-Wind is denied.

The branch of the motion by DLP Funding, LLC for an order pursuant to CPLR pursuant to CPLR 3211 (b) dismissing the affirmative defenses asserted in the joint answer of East Winds Consulting LLC d/b/a East Winds Consulting LLC and Melissa C Wolcott-Wind is granted in part and denied in part.

The motion seeking to strike the defendants' first affirmative defense which alleged failure to state a cause of action is denied as no motion lies under CPLR 3211 (b) to strike this affirmative defense.

The motion to strike the remaining thirty-five affirmative defenses is granted.

The matter is removed to civil court pursuant to CPLR 325 (d) for further proceedings due to the amount in controversy (CPLR 325 [d]; see Bess v Fordham Road Storage Partners, LLC, 195 Misc 2d 674, 676 [Sup Ct, Bronx County 2003]).

The foregoing constitutes the decision and order of the Court.