MANTIS FUNDING LLC v. MCF DRYWALL LLC (2022)

By notice of motion filed on June 7, 2022, under motion sequence number one, plaintiff Mantis Funding LLC, seeks an order pursuant to CPLR 3212 granting it summary judgment against MCF Drywall LLC and Francisco M Cabral on its claims for breach of contract, breach of personal guarantee and unjust enrichment as asserted against the defendants. The motion is unopposed.

The Court has considered NYSCEF documents 1 through and including 14 in deciding the motion.

LAW AND APPLICATION

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 [2nd 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”]; see Cugini v System Lumber Co., Inc., 111 AD2d 114 [1st Dept 1985]).

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [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 material facts (Guiffirda v Citibank, 100 NY2d 72 [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 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof 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. Furthermore, all of 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 [2nd Dept 1990]).

Plaintiff's motion for summary judgment is denied for the following reasons. The motion is supported by the affidavit of plaintiff's director of risk management (hereinafter the director). The director avers to knowledge of the plaintiff's policies and procedures, such knowledge having been obtained from a review of the plaintiff's business records. The director does not aver to personal knowledge of any of the transactional allegations of fact asserted in the complaint. The director did not execute the merchant agreement or have any personal knowledge of the acts of the defendants’ alleged breach.

The director claims personal knowledge that the defendant breached the merchant agreement derived from a review of the plaintiff's business records. The director, however, has laid no foundation for the admission of the plaintiff's business records. Nor are the records self-authenticating. Moreover, although the foundation for the admission of a business record may be provided by the testimony of the custodian, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted (HSBC Bank USA, Nat'l Ass'n v. Boursiquot, 204 AD3d 980, 982 [2nd Dept 2022]). Unless the business records are admissible, the director's testimony as to its contents is inadmissible hearsay (Id., citing CPLR 4518[a]; Wells Fargo Bank, N.A. v Atedgi, 189 AD3d 934, 936 [2nd Dept 2020]). Consequently, the alleged acts or omissions of the defendants purporting to be a breach of the parties’ alleged agreement is based on hearsay.

Accordingly, the motion is denied regardless of the sufficiency, or lack thereof, of opposing papers (Cugini v Sys. Lumber Co., 111 AD2d 114 [2nd Dept 1985]).

A copy of this decision and order, along with notice of entry, shall be served upon defendants and filed with the Court within 20 days of entry of the instant order.

This constitutes the decision and order of this Court.

Francois A. Rivera, J.