Libertas Funding LLC v CDM Plumbing Inc

2024 NY Slip Op 30909(U)

March 19, 2024

Supreme Court, Kings County

Docket Number: Index No. 534890/2023

Judge: Leon Ruchelsman

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 534890/2023

NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 03/19/2024

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SUPREME COURT OF THE STATE.OF NEW YORK 

COUNTY OF ~INGS: CiVIL tERM! COMMERCIAL PART 8 

.., - ---·-----·-·-------,--------.. --.-.---·--· ---x· 

LIBERTAS FUN.DING LLC~ 

Plaintiff, Decision and order 

- against - tnde~ N¢. 5l4ijjO/2-023 

CDM PLUMBING INC OBA ROTO-ROOTER; 

CDM WATER RESTORATION INC and 

MICHAEL THOMAS MERZ; DALE ANN- MERZ·, 

Defendants, March 19, 2024 

-------- ~-- .- . --- ~----~-----~ ·. - .· -- ... x 

'PRESENT: HON. LEON RUCI:IELSMAN Motion Seq.. # 1 

The plaintiff has moved seeking summary judgement pursuant 

t.,q CPL·R §3212. argu.ing th.eie are nci questions ot· fact ·the 

d,efendants owe the money sought. The plaintiff has also moved 

·s·eeking to dismiss defendant's counterclaims. The de:f eI1dants 

h,ave opposed tilce rnotion,s. Papers we.re submitted by the pa,rties 

and afte.r reviewing all the arguments thi.s court now makes the 

follo:wing determination .. 

On Mc!.Y 10, 2023 and September 6, 2023,-the piaintiff a, 

merchant cash adv.ance funding provider entered into contracts 

·with de·fendan ts who reside i rt Texa-s . Pursuant to th~ a gre.ement s 

the plaintiff purchased $325,QbO of defendant's future receivable 

for $250,00'0 and $'130;.0-00 of defen.dartt' s- future receivabl:·es fo.r 

$13,0,, 000. The defendants. .. gμaranteed tp.e a.9r.1;=em:ents" The 

plaintiff asserts the defe-ridants stopped rerilittanc~s _ in November 

2023 arid now owe· $214·, 313'. 6-5. Furthe.r, the_. plaintiff assert~. the 

defendant.breached the agreement PY by changing the designated 

barik account without Plaintiff's authorization and by placing a 

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s.top payment on the· account. This --action was ·c6mrnenc.ed an,d now 

the pl_aintiff seeks surpmary judgement arguing there can: be no 

questions of fact the defendants owe the amount outstanding and 

j_udgernent should ·b:e granted in the,ir favor. The defE:mdan_t:s 

oppose tne motion arguing there are questions of fact which 

p-reclude a suinmary· determination at this time.· 

Conclusions of Law 

Where: the material facts at issue in a ca.se are in dispute 

surtuna.ty judgment cannot be granted ( Zuckerman v. City of New 

York, 4"9 NYS2d 557, 427 NYS2"d 595 [1980]). Gen·erally, it is for 

.the jury, the t:i:-ier of f:act to determine the legal c·a-use ·o_"f any 

injury, however, wht=re only one conclusion may be drawn from the 

£_-acts then the question of leg-al cause ma"y be= decided by· the 

trial: court as a matter. of 1-aw (Marino v·. Jamison, 189 -·Ao.3-d 1021_, 

i36 NYS3d 324 [2d. Dept., 2021). 

Concerning establishing- any default,. it is w,ell sett;led 

tl'J.at "a.proper foundation for the admission of a business record 

must be provided by someone with personal. knowledge of the 

maker·' s- business practices ,and proc_edur(;;S" (Cit.iban"k N. A. v . 

. Cabrera, 130 AD3d 861, 14 NYS3d 420 [2d Dept .. , 2015]). Thus, 

where a party introduces evioencie= of' the ex.isteri.ce of J,.oans, 

pe;rsoncal guaran_t:.ees- and the defendant's failure to make payments 

according to the. terms of the ins_truments then summary judgement 

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is proper (see, JPMorgan Chase Bank N. A., v. Bauer, 92 AD3d 641, 

938 NYS2d 190 [2d Dept., 2012]) . In this case the plaintiff 

submitted the affidavit of Ricky Palaci'o a customer service 

representative of the plaintiff. He stated that he reviewed the 

plaintiff's records in connection with the loans extended in this 

case. He further stated that all the documents he reviewed were 

maintained in the regular course of business and all such records 

were made near their occurrence with someone who had knowledge at 

that time and that the plaintiff's standard practice is to keep 

such records in the. ordinary course of l:msiness. Thus, the 

plaintiff has established the admissibility of the records relied 

upon since Mr. Palacio had knowledge and familiarity of the 

plaintiff's practic:;es and procedures (see, Cadlerock Joint 

Venture L. P. v. Trombley:, 150 AD3d 957, 54 NYSJd 127 [2d Dept., 

2017]), 

The specific record in support of the motion seeking sμmmary . . 

judgement is remittance payment statements which demonstrates 

that certai.n payments due were never.£orwarded to the plaintiff 

( see; NYSCEF Doc. No. 4 and Doc. No. 5) . The ref ore, the proper 

.foundation for the admission of such document has been provided 

by Mr. Palacio who establish familiarity with the record keeping 

pr_actices of the plaintiff (~; JPMorgan Chase Bank N. A. • v. 

Rads Grbtip Inc,, 88 AD3d 766, 930 NYS2d 89,9 [2d Dept., 2011]). 

Therefore, the plaintiff established its entitlement to 

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summary judgement. 

The defendants insist the plaintiff has failed to eliminate 

all questions of fact. However, upon the presentation of the 

evidence noted above, the plaintiff has s·ufficiently demonstrated 

funds were given to the de·fendants and such funds have not been 

fully returned. The rernittence payments along with the affidavit 

of Mr. Palacio are sufficient to eliminate all questions of fact 

in this regard. Further, although the defendants allude to the 

fact the contract is not valid oh the grounds of usury they make 

no such substantive arguments in opposition to the motion seeking 

summary judgement. 

Therefor.e, based on the foregoing, the motion seeking 

summary judgernent is granted. 

So ordered. 

DATED: March 19, 2024 

Brooklyn N.Y, 

ENTER: 

Hon. Leon Ruch· 

llSC 

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