Boostra Florida Corp., Plaintiff, v. LLC JASON MICHAEL SAMPLE (2026)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on February 23, 2026, under motion sequence number two, by Boostra Florida Corp. (hereinafter the plaintiff), for an order (1) pursuant to CPLR 2221 (d), granting plaintiff leave to reargue the court's decision rendered on the record on January 22, 2026, which denied plaintiff's motion to dismiss the counterclaims jointly asserted by Dannemora Service and Sales LLC and Jason Michael Sample (hereinafter the defendant/counterclaim plaintiffs) and (2) upon re-argument, vacating the court's prior decision and granting plaintiff's motion to dismiss the counterclaims pursuant to CPLR 3211 (a) (1), (a) (3), and (a) (7), on the grounds that the court overlooked that plaintiff's evidentiary affirmation (NYSCEF doc. no. 11) is procedurally compliant with CPLR 2106. The motion is opposed.

Notice of motion

Affirmation in support

Exhibits A-E

Memorandum of law

Affirmation in opposition

BACKGROUND

On October 31, 2025, the plaintiff commenced this proceeding against Dannemora Service and Sales LLC and Jason Michael Sample by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's Office (hereinafter KCCO). The verified complaint alleges twenty-nine allegations of fact in support of two denominated causes of action. The first cause of action is for breach of contract. The second cause of action is for personal guaranty.

The verified complaint alleges the following salient facts. On or about July 31, 2025, plaintiff and defendants Dannemora Service and Sales LLC (hereinafter the corporate defendant) and Jason Michael Sample (hereinafter the individual defendant or guarantor) (hereinafter collectively the defendants) entered into a contract (hereinafter the agreement) whereby plaintiff refinanced the corporate defendant's outstanding balance of $19,677.80 from a prior sale of future receipts agreement dated on or about April 22, 2025 and in consideration thereof, the corporate defendant sold to plaintiff $52,499.98 of the corporate defendant's future receivables (hereinafter purchased amount or receivables) for a purchase price of $35,000 to be remitted to plaintiff from 7.72% of the corporate defendant's receivables. Plaintiff remitted the purchase price for the future receivables to the corporate defendant as agreed.

The corporate defendant agreed to have at least one bank account approved by the plaintiff from which the corporate defendant authorized plaintiff to make ACH withdrawals of the specified percentage of receivables until the purchased amount was fully paid to the plaintiff.

The guarantor agreed to guarantee the corporate defendant's performance of its obligations under the agreement, including but not limited to maintaining the designated bank account for plaintiff's ACH withdrawals, not interfering with plaintiff's collection of the purchased amount, complying with all covenants and restrictions set forth in the agreement, and refraining from entering any merchant cash advance agreement that would encumber the future receipts without plaintiff's prior written consent.

On or about September 9, 2025, the corporate defendant breached the agreement by ceasing to remit to plaintiff the specified percentage of the receivables, as required for repayment of the purchased amount and by intentionally preventing plaintiff from making weekly ACH withdrawals from the specified bank account. It did so by placing a stop payment on plaintiff's ACH withdrawals from the specified bank account or otherwise interfering with plaintiff's ability to collect the receivables.

Under the agreement, the corporate defendant was entitled to a reconciliation and adjustment of the initial estimated payment if its financial performance fluctuated during the term, provided it complied with the agreement's procedures for doing so.

Initially the corporate defendant met its obligations under the agreement. The corporate defendant remitted to plaintiff $6,265.42 toward the purchased amount leaving an unremitted portion of $46,234.56.

Under the agreement, the corporate defendant was obligated to pay a returned/rejected entry fee of $50.00 for each ACH entry, check, or electronically created item that is returned or rejected due to insufficient funds, here totaling $400.00.

Under the agreement, upon the corporate defendant's breach, the plaintiff is entitled to recover all costs of collection, including attorney fees (calculated at 25% of the amount owed) and all costs related to enforcing plaintiff's rights, here totaling $11,568.64, plus prejudgment interest, costs, and disbursements.

On November 7, 2025, the defendants interposed an answer, wherein they asserted affirmative defenses and two counterclaims. The first counterclaim is for breach of contract by plaintiff as to the corporate defendant. The second counterclaim is for breach of contract by plaintiff as to the guarantor.

The answer with the counterclaims of the defendant/counterclaim plaintiffs alleges the following salient facts. On or around July 31, 2025, defendants entered into a contract with the plaintiff. Pursuant to the agreement, defendant was to receive $35,000. Defendant was obligated to repay the amounts of $52,499.98. Defendants performed pursuant to the agreement. Pursuant to the agreement, defendants had the right to request a reconciliation to more closely reflect their receivables. Defendants requested a reconciliation of the specified payment amount to more closely reflect their receivables at that time. Plaintiff denied defendants' request for reconciliation and demanded payment in full of all remaining receivables. Plaintiff breached the contract. Defendants have suffered money damages because of plaintiff's breach of the agreement.

By notice of motion filed on November 28, 2025, under motion sequence number one, plaintiff sought an order dismissing the defendants' counterclaims pursuant to CPLR 3211 (a) (1), (a) (3), and (a) (7) based on documentary evidence, on the basis that the guarantor lacks legal capacity to sue for the alleged breach and also for failure to state a cause of action upon which relief may be granted. The motion was opposed.

The plaintiff's motion papers, under motion sequence number one, consist of a notice of motion, an attorney affirmation in support, annexed exhibits labeled A through C, and a memorandum of law. Exhibit A is a copy of a document denominated as "Sale of Future Receipts Agreement" and was fourteen pages. Exhibit B is an affirmation of Vladimir Chamovshikh in support of plaintiff's motion to dismiss defendants' counterclaims. Exhibit C is labeled in the NYSCEF system as "Proof of Remittance Stopped Payment" and consists of four pages. The first two pages of exhibit C is a copy of an untitled spreadsheet; the third page appears to be a screenshot of an excel worksheet; the fourth page has two headings labeled "Bank Account" and "Transactions" with redactions.

The defendants' opposition consists of an affirmation in opposition and a memorandum of law in opposition. The plaintiff filed a memorandum of law in reply.

By order dated January 22, 2026, the Court denied the plaintiff's motion under sequence number one to dismiss the counterclaims, as follows: "Motion by plaintiff (mot. seq. 1) pursuant to CPLR § 3211 (a) (1), (a) (3) and (a) (7) to dismiss the counterclaim is denied in its entirety as plaintiff failed to submit affirmations in accordance with CPLR § 2106, and as such the court has no sworn allegations of fact before it."

On February 23, 2026, the plaintiff filed the instant motion, under motion sequence number two, pursuant to CPLR 2221 (d) seeking leave to reargue the decision and order dated January 22, 2026, which denied plaintiff's motion to dismiss defendants' counterclaims, and upon re-argument, vacating the court's prior decision and granting plaintiff's motion to dismiss the counterclaims pursuant to CPLR 3211 (a) (1), (a) (3), and (a) (7), on the grounds that the court overlooked that plaintiff's evidentiary affirmation is procedurally compliant with CPLR 2106. The motion is opposed.

To date, the plaintiff has not filed a reply to the counterclaims.

MOTION PAPERS

The plaintiff's motion papers, under motion sequence number two, consist of a notice of motion, an attorney affirmation in support of re-argument, a memorandum of law, and annexed exhibits labeled A through E. Exhibit A is an affirmation of Vladimir Chamovshikh in support of plaintiff's motion to reargue. Exhibit B is a copy of the Court's decision dated January 22, 2026. Exhibit C is a copy of the "Sale of Future Receipts Agreement" and consists of fourteen pages. Exhibit D is the defendants' verified answer with affirmative defenses and counterclaims. Exhibit E is defendants' affirmation in opposition to the motion sequence number one.

The defendants' opposition consists of an affirmation in opposition.

LAW AND APPLICATION

Motion to Reargue

"A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (Deutsche Bank Natl. Trust Co. v Julius, --NYS3d--, 2026 NY Slip Op 03291, *1 [2d Dept 2026], citing Milennium Dev. & Constr., LLC v Pick, 235 AD3d 737, 739 [2d Dept 2025]; see CPLR 2221 [d] [2]). "[T]he determination to grant leave to reargue lies within the sound discretion of the court" (id.).

By short form order dated January 22, 2026, the Court denied the plaintiff's motion to dismiss the counterclaims, as follows: "Motion by plaintiff (mot. seq. 1) pursuant to CPLR § 3211 (a) (1), (a) (3) and (a) (7) to dismiss the counterclaim is denied in its entirety as plaintiff failed to submit affirmations in accordance with CPLR § 2106, and as such the court has no sworn allegations of fact before it."

The Court was correct in that the attorney affirmation by David Mizrahi, which was used to introduce exhibits A through C, was not in compliance with CPLR 2106, as amended (see CPLR 2106; see Kallo v Kane St. Synagogue, 241 AD3d 522, 523 [2d Dept 2025]; see Ajax Mtge. Loan Trust 2021-G, Mortgagebacked Sec., Series 2021-G by U.S. Bank N.A. v Loretoni, 87 Misc 3d 1213[A], 2025 NY Slip Op 51560[U] [Sup Ct, Westchester County 2025], citing Kallo v Kane St. Synagogue, 241 AD3d 522, 523-524 [2d Dept 2025]; see Grandsard v Hutchison, 2024 WL 1957086 [Sup Ct, New York County 2024] affd 227 AD3d 491 [1st Dept 2024]; see Great Lakes Ins. SE v American S.S. Owners Mut. Protection and Indem. Assn. Inc., 228 AD3d 429, 429 [1st Dept 2024]). However, the affirmation of Vladimir Chamovskikh (hereinafter Chamovskikh), annexed as exhibit B, was procedurally compliant. The Court was technically incorrect in stating in its order that it had "no sworn allegations of fact before it" when there was a CPLR 2106 compliant affirmation included in the plaintiff's evidentiary submission, albeit as an exhibit introduced by the defective attorney affirmation.

Therefore, plaintiff's motion to reargue pursuant to CPLR 2221, under motion sequence number two, is granted. The Court will consider the sworn allegations in the Chamovskikh affirmation, which was annexed as exhibit B, to the motion papers. Upon re-argument, plaintiff's motion to dismiss pursuant to CPLR 3211 (a) (1), (a) (3), and (a) (7) to dismiss the defendants' counterclaims, under motion sequence number one, is decided as follows.

First Counterclaim for Breach of Contract by Plaintiff as to Corporate Defendant.

Plaintiff seeks dismissal of the first counterclaim for breach of contract by plaintiff as to the corporate defendant pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (7).

"In considering a motion to dismiss a complaint or counterclaims pursuant to CPLR 3211(a)(1) based on documentary evidence, dismissal is warranted 'only where the documentary evidence utterly refutes [the] factual allegations, conclusively establishing a defense as a matter of law" (Wynkoop v 622A President St. Owners Corp., 169 AD3d 1100, 1102-1103 [2d Dept 2019], citing Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]). "To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable" (South Shore Eye Care, LLP v Lane, 242 AD3d 792, 795 [2d Dept 2025], quoting Xu v Van Zwienen, 212 AD3d 872, 874 [2d Dept 2023]). "Affidavits, deposition testimony, and letters are not considered documentary evidence within the intendment of CPLR 3211 (a) (1)" (County of Westchester v Unity Mech. Corp., 165 AD3d 883, 885 [2d Dept 2018]).

"In reviewing a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), 'a court must accept as true the facts as alleged in the pleading, accord the pleader the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' " (Liptis Pharms. USA, Inc. v Liptis for Pharms. & Med. Prods., SAE, 228 AD3d 927, 928 [2d Dept 2024], quoting Burton v Porcelain, 223 AD3d 775, 776 [2d Dept 2024]). "However, 'conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss" (Janover, LLC v Smith, 245 AD3d 907, 909 [2d Dept 2026], citing Godfrey v Spano, 13 NY3d 358, 373 [2009]). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, . . . dismissal should not eventuate" (Liptis Pharms. USA, Inc. v Liptis for Pharms. & Med. Prods., SAE, 228 AD3d 927, 928-929 [2d Dept 2024], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

"The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages" (South Shore Eye Care, LLP v Lane, 242 AD3d 792, 795 [2d Dept 2025]). "To state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provisions of the contract that were breached" (id.).

Here, the answer with counterclaims provides the following salient facts in support of a counterclaim for a breach of contract by plaintiff as to the corporate defendant. On or around July 31, 2025 the defendants entered into a contract with plaintiff. Pursuant to the agreement, the defendant was to receive $35,000. Defendant was obligated to repay the amounts of $52,499.98. Defendants performed pursuant to the agreement. Pursuant to the agreement, defendants had the right to request a reconciliation to more closely reflect their receivables. Defendants requested a reconciliation of the specified payment amount to more closely reflect their receivables at that time. Plaintiff breached the contract in that plaintiff denied defendants' request for reconciliation and demanded payment in full of all remaining receivables. Defendant has suffered money damages as a result of plaintiff's breach of the agreement.

Plaintiff contends that the specific provision of contract for reconciliation is not referred to by defendants in their counterclaim. However, the affirmation of Chamovskikh acknowledges and identifies a provision in the agreement that purportedly provided for reconciliation and adjustments to the remittance. Plaintiff relies on the agreement and the reconciliation provision in its own moving papers. Under these circumstances, the Court finds that the reference to reconciliation in the contract by the defendants in their counterclaim was adequate notice to the plaintiff (see Foley v D'Agostino, 21 AD2d 60, 62-63, 65 [1st Dept 1964]).

Therefore, the counterclaim states a viable cause of action to recover damages for breach of contract by the plaintiff as to the corporate defendant.

The counterclaim asserting a breach of contract by the plaintiff is not conclusively refuted by any documentary evidence. In support of its motion, the plaintiff provides an affirmation by Chamovskikh, an authorized representative of the plaintiff. However, the affirmation of Chamovskikh does not constitute documentary evidence within the intendment of CPLR 3211 (a) (1) (see County of Westchester v Unity Mech. Corp., 165 AD3d 883, 885 [2d Dept 2018]).

The affirmation of Chamovskikh introduces the parties' agreement, under exhibit A. The parties' agreement also does not utterly refute the factual allegations in the answer or conclusively establish a defense to the corporate defendant's counterclaim alleging breach of contract.

Plaintiff's evidentiary submission, which includes the parties' agreement, fails to conclusively establish that any fact alleged in the counterclaim was undisputably not a fact at all. Chamovskikh avers that the defendants never asked plaintiff for a reconciliation. However, the disputed facts alleged in the defendants' counterclaim are presumed to be true, and Chamovskikh's sworn allegations of fact to the contrary do not conclusively establish that any essential fact alleged in the defendants' counterclaim is not a fact at all (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see CPLR 3211 [a] [7]).

Thus, the evidentiary material submitted in connection with the motion, which includes the parties' agreement, fails to establish that the corporate defendant does not have a counterclaim for breach of contract.

Second Counterclaim for Breach of Contract by Plaintiff as to Guarantor

Plaintiff seeks dismissal of the second counterclaim for breach of contract by plaintiff as to the individual defendant pursuant to CPLR 3211 (a) (3) due to lack of legal capacity to sue for breach of the agreement.

"When a guarantor is sued on the guaranty . . . he or she cannot raise a claim or defense which is personal to the principal debtor, such as breach of the principal contract, unless it extends to a failure of consideration for the principal contract, and therefore for the guarantor's contract" (I Bldg, Inc. v Hong Mei Cheung, 137 AD3d 478, 478 [1st Dept 2016]). "A party when sued upon his obligation cannot avail himself of an independent cause of action existing in favor of his principal against the plaintiff as a defense or counterclaim. It is for the principal to determine what use he will make thereof and the surety has no control over him in this respect" (European Am. Bank v Competition Motors, 182 AD2d 67, 73 [2d Dept 1992], quoting Elliott v Brady, 192 NY 221, 226 [1908]).

Here, the counterclaims asserted by both the corporate defendant and the guarantor pertain to the plaintiff's denial of the defendants' request for reconciliation under the agreement. The guarantor's claim is derivative of the corporate defendant's claim as the principal to the agreement and the guarantor relies on the same facts as the corporate defendant in support of its counterclaim. And, the counterclaim is not based on a failure of consideration or another viable claim.

Therefore, the second counterclaim for breach of contract by the plaintiff as to the individual defendant is dismissed as the guarantor does not have standing to assert a counterclaim based on the breach of contract by the plaintiff.

CONCLUSION

The branch of plaintiff's motion, under motion sequence number two, for an order pursuant to CPLR 2221 (d) granting plaintiff leave to reargue the court's decision rendered on the record on January 22, 2026 is granted.

The branch of plaintiff's motion, under motion sequence number two, for an order vacating the court's prior decision of January 22, 2026, is granted.

The branch of plaintiff's motion, under motion sequence number two, for an order pursuant to CPLR 3211 (a) (1), (a) (3), and (a) (7) dismissing the first counterclaim for breach of contract by plaintiff as to the corporate defendant is denied.

The branch of plaintiff's motion, under motion sequence number two, for an order pursuant to CPLR 3211 (a) (1), (a) (3), and (a) (7) dismissing the second counterclaim for breach of contract by plaintiff as to the individual defendant is granted.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.

Francois A. Rivera, J.