Top Tier Capital, Plaintiff, v. MOSQUITO ONE ERIC MICHAEL KIRSCHKE (2026)

The following papers efiled on NYSCEF were used on this motion: 8-19.

Upon the foregoing papers, having heard oral argument ¹ , and due deliberation having been had, the within motion for summary judgment by Plaintiff Top Tier Capital is determined as follows.

Background

Plaintiff Top Tier Capital commenced this action on January 23, 2026, by filing a summons and complaint (see NY St Cts Elec Filing [NYSCEF] Doc No. 15). Plaintiff alleged that on or about October 25, 2025, Plaintiff and Defendant Mosquito Control of Michigan Inc d/b/a Mosquito One ("Defendant Mosquito One") entered into a Purchase of Future Receivables Agreement ("Agreement"), pursuant to which Plaintiff purchased 30.00% of Defendant Mosquito One's total future accounts receivable up to the sum of $30,000.00 (see id. ¶ 5). In exchange, Plaintiff would provide an upfront purchase price of $20,000.00 (see id.). The purchase amount was to be remitted to Plaintiff via daily debits of the specified percentage in the amount of $600.00 (see id. ¶ 10). It was further alleged that pursuant to a guaranty contained in the Agreement, Defendant Eric Michael Kirschke ("Defendant Kirschke") guaranteed the prompt and punctual performance of Defendant Mosquito One's obligations to Plaintiff pursuant to the Agreement (see id. ¶ 6).

Movant's Contentions

Plaintiff moves pursuant to CPLR 3212 against Defendant Mosquito One and Defendant Kirschke for summary judgment on the complaint in the amount of $18,505.00 plus statutory interest at 9% from December 30, 2025, with costs and disbursements (see NYSCEF Doc Nos. 8, 9).

Plaintiff, through the affirmation of Erik Kapusta, its managing partner, alleges that on October 31, 2025, it promptly performed under the Agreement by wiring the purchase price less any agreed-upon fees of 10.00% of the purchase price in the amount of $2,000.00 for a total payment of $18,000.00 (see NYSCEF Doc No. 8 ¶ 8). Defendants partially performed by delivering $14,100.00 of the total purchased amount of $30,000.00, leaving a balance of $15,900.00 (see id. ¶ 20). Defendants then materially breached the Agreement on December 30, 2025, when they failed to perform their obligations to Plaintiff pursuant to the Agreement (see id. ¶¶ 19-20). Furthermore, Defendants incurred a default fee of $2,500.00 and a contractual insufficient funds fee of $105.00, making the balance due after fees $18,505.00 (see id. ¶ 22). Defendant Kirschke breached the provisions of the guaranty by failing to perform Defendant Mosquito One's obligations to Plaintiff pursuant to the Agreement when Defendant Mosquito One defaulted (see id. ¶ 23).

With respect to the documentary evidence submitted by Plaintiff, Mr. Kapusta averred that on October 31, 2025, he received a confirmation receipt from Plaintiff's bank, Optimum Bank, confirming that Plaintiff had delivered $18,000.00 from its account to Defendant Mosquito One's bank account (see id. ¶ 14). He further affirmed that it is Plaintiff's regular course of business to keep confirmations of payments showing that Plaintiff paid the purchase price, that the receipt was created and received contemporaneously, and he has personal knowledge and familiarity with these processes based on his supervisory role in servicing for Plaintiff (see id. ¶¶ 14-15). The receipt, appearing in NYSCEF Doc No. 13, demonstrated that $18,000.00 was transferred from Plaintiff to Defendant Mosquito One on October 31, 2025, and it was created by Vladimir Kaminsky on October 30, 2025 (see NYSCEF Doc No. 13).

Beginning on December 8, 2025, the remittances were returned for insufficient funds, but Defendants, despite due demand, failed and refused to provide financial documents to allow Plaintiff to reconcile payments, if necessary. Therefore, Defendant materially breached the agreement by performing an event of default. Under the Agreement's Section 14(k), entitled "Accurate and Complete Information," Seller (Defendant Mosquito One) represented, warranted, and agreed that all information provided to Buyer (Plaintiff) and all statements made to the latter relating to this transaction in any way were truthful, accurate, and complete. (See NYSCEF Doc No. 9 ¶19.)

Plaintiff argues that it should be granted summary judgment as this is a clear breach of contract matter. The elements of breach of contract are (1) formation of a contract between plaintiff and defendant, (2) performance by the plaintiff, (3) failure by defendant to perform, and (4) resulting damages, citing to Furia v Furia (116 AD2d 694, 695 [2d Dept 1986]) (see NYSCEF Doc No. 18 at 5). Plaintiff has tendered sufficient evidentiary proof to establish a prima facie cause of action for a breach of contract claim as it has established the existence of an agreement between Plaintiff and defendant merchant, performance by Plaintiff, non-performance by Defendant merchant, and damages attributable to the breach, citing to Sauer v Xerox Corp. (95 F Supp 2d 125 [WDNY 2000]) (see id.).

Furthermore, where a guaranty is clear and unambiguous on its face and, by its language, absolute and unconditional, the signer is conclusively bound by its terms absent a showing of fraud, duress, or other wrongful act in its inducement, according to National Westminster Bank USA v Sardi's Inc., 174 AD2d 470, 471 [1st Dept 1991]). The personal guaranty here is clear and unambiguous and Defendant Kirschke personally guaranteed Defendant Mosquito One's performance under the Agreement. (See NYSCEF Doc No. 18 at 6.)

Plaintiff's motion also includes requested relief of dismissing Defendants' affirmative defenses as lacking merit. Defendants raised the affirmative defense of usury. Citing to LG Funding, LLC v United Senior Props. of Olathe, LLC (181 AD3d 664 [2d Dept 2020]), Plaintiff asserted that courts generally weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy. The Agreement at issue contains a reconciliation provision in section 7, which provides that Plaintiff has a mandatory obligation under that section to perform a reconciliation upon Defendants' request for reconciliation and the receipt of the required documents. Section 8 of the Agreement further shows that the term length is not finite and does not make Defendants' filing for bankruptcy in and of itself an event of default. (See NYSCEF Doc No. 18 at 6-10.)

Defendants' other affirmative defenses are devoid of any evidence produced to substantiate the merits and should be disregarded as they have no basis in law or in fact, claims Plaintiff (see id. at 10-11).

Opposition

Defendants did not file any papers in opposition to the motion.

Discussion

I. Whether Plaintiff's Evidence Complies With CPLR 4518

CPLR 4518 provides: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." In addition, the writing or record must have been made upon the recorder's own personal knowledge or from information given to the recorder by someone with personal knowledge and a business duty to transmit the information accurately (see Johnson v Lutz, 253 NY 124 [1930]; Bank of NY Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]).

Mr. Kapusta's affirmation states that Plaintiff performed under the agreement by wiring $18,000.00 from its account with Optimum Bank to Defendant Mosquito One's bank account at Huntington Bank on October 31, 2025 (see NYSCEF Doc No. 9 ¶ 14). Mr. Kapusta attests that he caused this payment to be remitted by Plaintiff and shortly after received a wire receipt confirming that Plaintiff had delivered $18,000.00 from its account to the designated account for Defendant Mosquito One on the same day (see id.) Mr. Kapusta attests that the receipt was created and received at the same time of the wire and it was received and kept as a routine business practice by employees of Plaintiff (see NYSCEF Doc No. 9 ¶ 15). Furthermore, he states that "[t]he information recorded in the receipt came from employees of Plaintiff and was recorded by Optimum Bank at the time of the wire transfer on October 31, 2025. I have personal knowledge and familiarity with these processes based upon my supervisory role in servicing for Plaintiff" (id.)

While these statements indicate the information in the receipt "came from" employees of Plaintiff (id.), the wire receipt itself was "received" from Optimum Bank (id. ¶ 14). This is inconsistent. Also inconsistent is the receipt's purported acknowledgement of a credit to Defendant Mosquito One in the amount of $18,000.00 on October 31, 2025, while the receipt was created on October 30, 2025, the day before.

Moreover, Plaintiff here established only its own record-keeping practices and not those of Optimum Bank, the entity that generated the wire confirmation. Furthermore, while Mr. Kapusta has personal knowledge of Plaintiff's business practices, he has not sufficiently demonstrated that he has personal knowledge of Optimum Bank's business practices or that he received the information he attested to by someone with actual knowledge the same. As such, NYSCEF Doc No. 13, containing the purported confirmation receipt whose header states, "Optimum Bank," is deemed to constitute inadmissible evidence by the Court; it is hearsay and does not qualify for the business record exception.

II. Plaintiff's Summary Judgment Motion

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (see Bazdaric v Almah Partners LLC, 41 NY3d 310, 314 [2024]).

As NYSCEF Doc No. 13, the purported wire confirmation receipt, cannot be considered due to the failure to lay a proper foundation, there has been no admissible evidence submitted which establishes that Plaintiff transferred $18,000.00 to Defendant Mosquito One's bank account. Therefore, performance by Plaintiff, a requisite element of breach of contract, cannot be established (see Kingdom Assoc., Inc. v WBC Servs. Inc., 249 AD3d 521, 521 [1st Dept 2026]). Defendants' failure to oppose does not relieve Plaintiff of its burden of establishing a prima facie entitlement to judgment as a matter of law. As such, Plaintiff has not made a prima facie case of entitlement to summary judgment.

III. Dismissal of Affirmative Defenses

In light of the fact that Plaintiff failed to establish through admissible evidence that it performed its duties under the subject Agreement, there can be no adjudication of the branch of Plaintiff's motion which seeks to dismiss Defendants' affirmative defense of usury. Insofar as other affirmative defenses are concerned, Plaintiff failed to specifically identify them in its motion papers.

Conclusion

It is hereby ORDERED that Plaintiff's motion for summary judgment is DENIED.

FOOTNOTES

1.   . Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

Aaron D. Maslow, J.