Zomongo.TV USA Inc. v. Capital Advance Servs., LLC

Zomongo.TV USA Inc. v Capital Advance Servs., LLC 2024 NY Slip Op 33873(U) October 29, 2024 Supreme Court, Kings County Docket Number: Index No. 512735/2021 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 10/29/2024 01:27 PM INDEX NO. 512735/2021 NYSCEF DOC. NO. 359 RECEIVED NYSCEF: 10/29/2024

SUPREME COURT OF THE STATE OF NEW YORK GOUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 .· ---·---·. ------ ..-------- .-·----... - ... -.--·----·- ..x.

ZOMONGO.TV USA INC. D/B/A ZOMONGO.TV USA,. JOCELYNE LISA HUGHES-OSTROWSKI arid JEREMY GENE OSTROWSKI, Plaintiff~, Decisibri and order - against ,.. Index No. 512735/2021 CAPITAL ADVANCE SERVICES, LLC, Defendant, October 29, 2024 ·.-.---· - .--------.. --.------ . - .-------.-.. ---·-x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #14 & #ls·

The plaintiff has moved pursuant to CPLR §3212 seeking partial summary judgement. The defendant has opposed the motion.

The cl,efendant has cross-moved seeking to dismiss the complaint for the failure to engage in discovery. The .plaintiff opposes that motion. Papers were submitted by the parties arid arguments held. Afte.r reviewing all the arguments this court now makes the following determination.

The facts have been adequately recorded in prior orders and need hot be repeated here.

Conclusions of Law WhE!re the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 NYS2.d 557, 427 NYS2d 595 [1980]). Genera1l.y, :Lt is for the jury, the trier. Of fact to .de.terrnin.e the legal cause of any injury, however~ where only one conclusion may be drawn from the facts then the question of iegai cause may be de.cided by the

The arguments presented by the plaintiff seek the dismissal of the confession of judgement. However, the amended complaint contains one cause of action, namely breach of contract (see, Amended Corri.plaint [NYSCEF Doc. No, 75]). While the complaint does .reference the confession of judgement in its background information, the actual breach of contra,ct cause of action does riot concern the confession of judgement at all. The breach of coµtract cause of action concerning the February agreement is bas,ed upon allegations the defendant '' '( i} failed to make "a good faith approximation of the Specified Percentage" to calculate the Daily Pa,yment, (ii) failed to deliver the amount contractually owed to Plaintiffs, (iii) charged zomongo unearned undisclosed fees, (iv) overcolleCted from Zomongo's account in excess of the Daily Payment, (v) continued collection after satisfaction, and (vi) inflated the balance owed f6r satisfaction'~ (see, Amended Complaint, ':1[167 [:NYSCEF Doc. No. 75]), The allegations regarding the April agreement are substantially similar (see, Amended Complaint, '.llT71 [NYSCEF Doc. No. 7 5] ) . The earlier decision bf the court pointing out that if a breach of contract claim would be. successful then consequently the ccinlession of judgement woulci be vacated does not mean the confession of judgetn.ent tart be examined in a vacuum. In fact the opposite is true, first the

Doc. No. 108] .. ) .

Thus·, considering the breach of contract claim there cah be no summary determination at this juncture that the plaintiff breached the merchant agreement in any way. Specifically, there are surely questions, among others, whether the plaintiff· breached the agreement by selling its receivables to other funders.

Next, it is well settleo. that i3. trial -court maintains broad di._scretion to deny su:i:nmary judgement and to afford parti._es the opportunity to engage in discovery (CPLR §3212 (f)) . Thus, "the court has discretion to deny a motion for summary judgment, or to order a continuance to permit affidavits to be obtained or disclosure to be had;. if facts ess.ential to justify opposition to the motion may exist but cannot then lJe stat~d.. For the court to delay action on the motion, there must be a likelihood.of

As noted, the plaintiff's motion seeking summary judgement is based upon one premise, namely there are no questions df fact the defendant breached the merchant agreement. It is true that a motion for summary judgment should not generally be granted before any disco.very has taken place (Fazio v. Brandywine Realty Trust, 29 A03d 93 9 1 815 NYS2d 4 70, [2d Dept., 200 6] ) . This is especially true where discovery is necessary to ascertain whether the plaintiff can establish the contentions found in the complaint and whether the defendant can est 9 blish any v 9 li¢i defenses (See, generally, Manufacturer's and Trader's Trust Company v. Norfolk Bank, 16 Ad3d 467, 791 NYS2d 599 [2d Dept., 2005]). In any event, there is no prohibition to filing a· motion for sumn:tary judgement pefore any discovery has taken place in an appropriate case and the opposing party, the defendant in this case, bears the burden demonstrating further discovery i,s required (Northfield Insurance Company v. Golob, 164 AD3d 682, 82 NYS3d 192 [2d Dept., 2018]) .

Thus, upon receipt of the motion the. defendant. submitted a memorandum in opposition and. raise.ct arguments there are contradictio.ns in the affidavits submitted by the plaintiff and

Generally, a party should be afforded an opportunity to conduct discovery before a summary judgement determination is made (Salameh v. Yarkovsky, 156 AD3d 659, 64 NYS3d 569 [2d Dept., 2017]). Therefore, "a party opposing sum:tnary judgtnent is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (Brea v. Salvatore, 130 AD3d 956, 13 NYS3d 839 [2d Dept., 2015]). ''A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of. the movant" (Rutherford v; Brooklyn Navy Yard Development Corporation, 174 AD3d 932, 105 NYS3d 518 [3d Dept., 2019]).

The def end ant is r·equired to present non-speculative and non..-conclusory assertions the discovery is n.ecessary. The defendant has met that burden. In this case the defendant has presented an evidentiary basis that i t should be entitled to discovery prior to the submission of summary judgement. Thus, discovery must be exohanged.

Therefore, the motion seeking summary j-udgement is denied as p:r;ematur~ without prej1Jdic.e. The motion seekipg to .dismiss. the complaint is denied.. The parties a:re directed to ertga.ge in

So ordered, ENTER:

DATED: October 29i 2024 Brooklyn N.Y. Hon. Leon Ruchelsman JSC