App Funding Beta LLC v Binder Commercial Real Estate Mgt.

Supreme Court, Oneida County

Decided on July 6, 2026

Index No. EFCA2026-000144

Elizabeth Snyder Fortino, J.

Background

On January 12, 2026, Plaintiff App Funding Beta LLC commenced this action against Defendants Binder Commercial Real Estate Management d/b/a Binder CRE ("Binder CRE") and Joseph Matthew Binder ("Joseph Binder") alleging breach of a Sale of Future Receivables Agreement ("Agreement") (see Summons and Complaint). Plaintiff contends that the parties entered into an Agreement on or about November 6, 2025, whereby Plaintiff agreed to purchase $14,990.00 of Defendant Binder CRE's future receivables. Plaintiff further contends that Defendants made payments totaling $4,684.35 but failed to make any additional payments, breaching the agreement and leaving an outstanding balance of $10,305.65 (see Exhibit A: Agreement).

Defendants filed an answer on February 4, 2026, denying Plaintiff's allegations and raising twenty-seven affirmative defenses, including lack of admissible proof of the amounts claimed, unconscionability, usury, lack of personal jurisdiction, lack of subject matter jurisdiction, improper fees, and standing.

Plaintiff now moves for summary judgment, seeking an award of $15,455.65, consisting of $10,305.65 for the Outstanding Purchased Amount, $5,000.00 for a Default Fee, and $150.00 for an NSF Fee. Defendants oppose Plaintiff's motion, arguing that Plaintiff's evidence is inadmissible, Plaintiff's requested fees constitute unenforceable penalties, and triable issues of fact exist regarding the purported breach, preventing summary judgment.

Legal Analysis

Under CPLR 3212, a movant for summary judgment must demonstrate entitlement to judgment as a matter of law by admissible evidence showing the absence of any genuine issue of material fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the movant fails to make such a showing, the motion must be denied regardless of the sufficiency of opposing papers (id.). Only after the movant makes a prima facie showing does the burden shift to the opponent to raise triable issues (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

A party moving for summary judgment may satisfy its prima facie burden by submitting admissible evidence. Pursuant to CPLR 4518(a), a party relying on business records as evidence must provide detailed foundational facts showing that the records were made in the regular course of business, at or near the time of events recorded. An affiant providing foundational facts must specify when, how, by whom, and through what procedures the entries were created and maintained, so the Court may assess the records' reliability (see Palisades Collection, LLC v Kedik, 67 AD3d 1329 [4th Dept 2009]). New York courts repeatedly reject affidavits that fail to provide concrete information about how the records were created, maintained, or verified (see [*2]Tiffany & Co. v Lloyd's of London Syndicates 33, 510, 609, 780, 1084, 1225, 1414, 1686, 1861, 1969, 2001, 2012, 2232, 2488, 2987, 3000, 3623, 4444, 4472, & 4711, 83 Misc 3d 1211(A) [Sup Ct, New York County 2024]). For example, in Capybara Capital LLC v Zilco NW LLC (78 Misc 3d 1238(A) at *5 [Sup Ct, Kings County 2023]), the plaintiff's affiant affirmed that she was "fully familiar" with the facts giving rise to the action, and that the records attached were business records made in the regular course of the plaintiff's business, maintained under her "supervision and control," and were created at or near the time of the events reflected (id.). However, the court found the affidavit insufficient because the affiant failed to provide specific, foundational detail, such as how the records were created, who entered or verified the data, what system generated the remittance history, or what procedures ensured accuracy (id.).

Moreover, where, as here, a company's business records consist of documents created by or information supplied by third parties, merely receiving and filing the documents from those third parties does not make them business records of the company (id. at *4). To satisfy CPLR 4518(a), the receiving company must also establish either (i) that the sending company created the documents under circumstances that satisfy CPLR 4518(a); or (ii) the receiving company incorporated the documents into its own records and routinely used the documents in their regular course of business (id.; see e.g. Bank of NY Mellon v Demasco, 226 AD3d 855, 857 [2d Dept 2024] [holding that records were inadmissible because the foundational affidavit did not allege that the company routinely relied upon the records in the course of its business]).

In support of its motion, Plaintiff submits the affirmation of Benjamin Sanders. Like the affiant in Capybara Capital LLC, Mr. Sanders states that he is an authorized representative of Plaintiff, who acts as Plaintiff's custodian of records, and is "fully familiar with the facts and circumstances" in the action, including Plaintiff's practices, policies, and procedures related to account management, funding, and payments. He claims to have "personal knowledge of the business records annexed hereto, the information contained therein, and Plaintiff's record-keeping practices," but acknowledges that the business records contain information from third parties. He claims that Plaintiff regularly incorporates information supplied by third parties into its own business records and "relies on their accuracy in conducting its own business."

But the affirmation does not explain how the attached business records were created, identify who enters or verifies the data, describe what record-keeping system or software generates the entries, state any routine or procedure ensuring accuracy, or explain when the entries were made in relation to the underlying events. Furthermore, Mr. Sanders does not explain the role of third-party processors, whether third-party entities generated the attached business records, or how Plaintiff verifies the documents' accuracy. Mr. Sanders' affirmation does not even state that he believes the exhibits to be an accurate and fair representation of the transactions alleged in the Summons and Complaint.

Because Mr. Sanders' affirmation fails to satisfy CPLR 4518(a), the Proof of Funding (Exhibit B) and Ledger (Exhibit C) are inadmissible. Absent admissible evidence of default or damages, Plaintiff cannot establish entitlement to summary judgment as a matter of law.

Even if Plaintiff's evidence was admissible, genuine issues of fact remain. In their answer, Defendants asserted affirmative defenses challenging standing and subject matter jurisdiction (see Verified Answer). Plaintiff's Verified Complaint asserts that "[a]t all relevant times, Plaintiff was and is a Limited Liability Company organized and existing under the laws of the State of NY and authorized to do business in New York State" (see Verified Complaint). However, in other cases commenced by Plaintiff (see NYSCEF Doc No. 1, Summons and [*3]Complaint, in App Funding Beta LLC v AB Electrical, Inc., Sup Ct, Monroe County, Index No. 2024006059; NYSCEF Doc No. 1, Summons and Complaint, in App Funding Beta LLC v Dennis Dewayne Mosley, Sup Ct, Monroe County, Index No. E2024006364), Plaintiff claims to be a Connecticut Limited Liability Company duly registered in the State of New York as a foreign Limited Liability Company. Nowhere in its papers submitted to this Court does Plaintiff disclose that it is a Connecticut LLC or that it is a foreign LLC.

Additionally, in App Funding Beta LLC v Freedom Road Cycles and Sale LLC, the court found that Plaintiff had been dissolved in its state of incorporation at the time it commenced the action (Sup Ct, Onondaga County, April 24, 2026, index No. 012854/2025). Under New York Limited Liability Company Law § 807, a foreign LLC, which has been dissolved in its home state, must file proof of same in New York. Limited Liability Company Law § 805(a) also provides that the authority to do business in this state hinges upon the foreign company's retention of its authority to do business "in the jurisdiction of its formation." Furthermore, under Connecticut's Limited Liability Company Law, "a limited liability company that is dissolved by forfeiture continues in existence as an entity but may not carry on any activities except as necessary to wind up its activities and affairs and liquidate its assets" (Conn. Gen. Stat. § 34-267g).

Plaintiff alleges that it entered into a contract with Defendant on or about November 6, 2025, and Plaintiff commenced this action on January 12, 2026, both after Plaintiff's date of dissolution on August 15, 2025. Plaintiff provides no evidence of its current legal status, whether it remains dissolved, or whether it was licensed to conduct business at the commencement of this action or at the time it entered into any agreement with Defendants. Accordingly, until Plaintiff submits competent proof of its standing and explains the discrepancy to the Court, there exists an issue of fact sufficient to preclude summary judgment.

Finally, the Court also notes that Defendants, among other defenses, challenge the contractual fee provisions as unenforceable penalties. As Plaintiff has not met its prima facie burden on this summary judgment motion, and because the Court denies the motion on threshold evidentiary and standing grounds, the Court does not reach the merits of Defendants' arguments. If necessary, the Court may address those issues upon a properly supported renewal motion or at a later stage of the proceedings.

After careful consideration of the papers identified at the outset of this Decision and Order, it is hereby

ORDERED, that Plaintiff's Motion for Summary Judgment pursuant to CPLR 3212 is DENIED, with leave to renew upon (1) submission of competent proof establishing Plaintiff's legal status and authority to maintain this action, and (2) submission of admissible evidence satisfying CPLR 4518(a) and properly establishing breach and damages; and it is furthermore

This constitutes the Decision and Order of the Court.

ENTER:

Dated: July 6, 2026

Utica, New York

Hon. Elizabeth Snyder Fortino, J.S.C.