AKF Inc. v. Louisa Ridge Adult Day Servs., Inc.

AKF Inc. v Louisa Ridge Adult Day Servs., Inc.

2024 NY Slip Op 32848(U)

August 13, 2024

Supreme Court, New York County

Docket Number: Index No. 653893/2023

Judge: Shahabuddeen Abid Ally

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.

INDEX NO. 653893/2023

NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/13/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. SHAHABUDDEEN ABID ALLY PART16TR

Justice

AKF INC. d/b/a FUNDKITE, INDEX NO. 653893/2023

MOTION DATE 6/13/2024

Petitioner,

MOTION SEQ. NO. 001

-against-

LOUISA RIDGE ADULT DAY SERVICES, INC. d/b/a DECISION & ORDER

LOUISA RIDGE ADULT DAY SERVICES, FRANCINE

RENEE OSBY, and ARICKA LATOYA WALKER,

Respondents.

The following e-filed documents, listed by NYSCEF document number, were read

on this motion (Seq. No. 1) to/for ARTICLE 75 (INJUNCTION IN AID OF

ARBITRATION): 1-10, 12, 16-23

In this proceeding pursuant to CPLR § 7502(c), petitioner moves by Order to Show Cause

("OSC") for a preliminary injunction in aid of arbitration to restrain the respondents' bank ac-

counts pending an award in an underlying arbitration proceeding, which was initiated on Sep-

tember 15, 2023, shortly after the Court signed the OSC. Although respondents have not appeared

in this proceeding or filed opposition, the Verified Petition and OSC are DENIED for the reasons

set forth below.

In a written Revenue Purchase Agreement, dated March 21, 2023 (the "RPA"), the parties

agreed to enter into a nonrecourse cash advance transaction whereby respondent LOUISA RIDGE

ADULT DAY SERVICES, INC. d/b/a LOUISA RIDGE ADULT DAY SERVICES ("Louisa Ridge")

agreed to sell $227,172.00 of its future receipts to petitioner in exchange for an upfront lump-sum

payment of $172,100.00 less fees and costs. (NYSCEF Doc. 2) The other respondents are guaran-

tors on the RPA. (See id.) The RPA contains a provision providing for arbitration of disputes with

Mediation and Civil Arbitration, Inc. ("MCA") or, if unavailable, JAMS. (Id. 'i[ 4.14)

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Mot Seq. No. 1

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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/13/2024

The RPA provided for a weekly "delivery" amount of $4,732.75 from Louisa Ridge's re-

ceipts via an automatic debit from its designated bank, with a monthly reconciliation. The desig-

nated bank account was held with JPMorgan Chase Bank ("Chase").

Petitioner alleges that, beginning on August 4, 2023, Louisa Ridge's scheduled weekly

debit of receipts from Chase was declined because the bank had stopped payment. Petitioner

further asserts that Louisa Ridge did not inform petitioner whether the bank account had been

closed or otherwise attempt to demonstrate any supposed downturn in the amount of its weekly

receipts, as would have been permitted under the RPA. Petitioner alleges generally that "there is

no reason for a merchant to refuse to deliver their share of Receipts or block Fundkite' s access to

the Designated Account, unless the Merchant has no intention of complying with the RPA," and

that "it has been Fundkite's experience that merchants who refuse to deliver their share of Re-

ceipts attempt to avoid collection by removing all funds from the Designated Account." (NYSCEF

Doc. 1, <_[<_[ 35, 37)

Petitioner commenced this proceeding on August 11, 2023. By signing the initiatory OSC,

the Court temporarily restrained Chase from transferring money out of any of respondents' bank

accounts that were maintained with it. Petitioner thereafter properly served respondents in ac-

cordance with the method to which they consented in the RPA.

On September 15, 2023, petitioner filed a Demand for Arbitration with MCA seeking

$183,245.45, inclusive of interest, attorney's fees, and costs. (NYSCEF Docs. 16-17)

CPLR § 7502(c) provides, in relevant part:

The supreme court ... may entertain an application ... for a preliminary

injunction in connection with an arbitration that is pending or that is to be

commenced inside or outside this state ... but only upon the ground that

the award to which the applicant may be entitled may be rendered inef-

fectual without such provisional relief. The provisions of article 62 and 63

of this chapter shall apply to this application ....

To be entitled to an injunction under§ 7502(c), the First Department requires both a showing that

the arbitration award could be rendered ineffectual as well as a showing of satisfaction of the

three elements for injunctive relief pursuant to CPLR § 6301, namely, (1) likelihood of success on

the merits, (2) irreparable injury in the absence of the injunction, and (3) a balance of equities in

favor of the moving party. Patrolmen's Benevolent Ass'n of the City of N. Y., Inc. v. City of N. Y., 112

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Mot. Seq. No. 1

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A.D.3d 116, 118 (1st Dep't 2013); see also, e.g., Conlon Holdings LLC v. Chanos & Company LP, No.

154908/2024, 2024 WL 3659592, at *3 (N.Y. Sup. Ct. N.Y. Cty. Aug. 1, 2024); AKF, Inc. v. Windows

& Beyond Interiors, LLC, No. 653110/2023, 2023 WL 8570844, at *2 (N.Y. Sup. Ct. N.Y. Cty. Dec. 11,

2023); accord Winter v. Brown, 49 A.D.3d 526, 529 (2d Dep't 2008) ("A party seeking relief under

[§ 7502(c)] must also make a showing of the traditional equitable criteria for the granting of tem-

porary relief under CPLR article 63.").

Here, petitioner fails to demonstrate any irreparable injury, the second prerequisite for

equitable injunctive relief. Petitioner alleges nothing more than monetary damages. It does not

allege or establish that the money that it seeks is "part of any specific res or fund which could

rightly be regarded as the 'subject of the action."' Int1 Legal Consulting Ltd. v. Malabu Oil & Gas

Ltd., 35 Misc. 3d 1203(A), at *9 (N.Y. Sup. Ct. N.Y. Cty. Mar. 15, 2012) (quoting Winter, 49 A.D.3d

at 529)). Nor does it allege or establish that respondents have no other assets that could be seized

or levied upon to satisfy a judgment. It is well settled that damages that are fully compensable by

monetary relief, as petitioner's damages are here, do not constitute irreparable harm and are in-

sufficient to support the granting of injunctive relief. Credit Agricole Indosuez v. Rossiyskiy Kredit

Bank, 94 N.Y.2d 541, 544-46 (2000); Kazantzis v. Cascade Funding RMl Acquisitions Grantor Trust,

217 A.D.3d 410, 412 (1st Dep't 2023); Noyack Med. Partners, LLC v. OSK IX, LLC, 206 A.D.3d 429,

430 (1st Dep't 2022); Conlon Holdings, 2024 WL 3659592, at *6; AKF, 2023 WL 8570844, at *2. Peti-

tioner "simply seeks to ensure that an arbitration award in its favor would be recoverable, which

is not an adequate basis for prejudgment equitable relief." AKF, 2023 WL 8570844, at *2 (citing

Credit Agricole, 94 N.Y.2d at 548).

The cases on which petitioner relies are distinguishable. H.I.G. Capital Management, Inc. v.

Ligator, 233 A.D.2d 270 (1st Dep't 1996), and County Natwest Securities Corp. USA v. Jesup, Josephthal

& Co., Inc., 180 A.D.2d 468 (1st Dep't 1992), both pre-date Patrolmen's Benevolent Association, 112

A.D.3d 116, and Winter, 49 A.D.3d 526, in which the First and Second Departments, respectively,

required a petitioner under § 7502( c) to also demonstrate the three elements for injunctive relief

pursuant to CPLR § 6301. Qwil PBC v. Landow, 180 A.D.3d 593 (1st Dep't 2020), is distinguishable

on factual grounds and has been so distinguished in the same context by multiple other trial

courts. E.g., AKF Inc. v. Wagers Trailer Sales, Inc., No. 651522/2024, 2024 WL 2175499, at * 1 (N.Y.

Sup. Ct. N.Y. Cty. May 10, 2024); AKF Inc. v. OBI Bus., L.L.C., No. 656339/2023, 2024 WL 1162764,

653893/2023 AKF Inc. d/b/a/ Fundkite v. Louisa Ridge Adult Day Services Inc. et al. Page3 of 5

Mot. Seq. No.1

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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/13/2024

at *1 (N.Y. Sup. Ct. N.Y. Cty. Mar. 12, 2024); AKF, Inc. v. Mgmt. & Org. Support Servs., LLC, No.

652737/2023, at *1 (N.Y. Sup. Ct. N.Y. Cty. June 30, 2023). Finally, the numerous signed OSCs from

other proceedings in which trial courts granted temporary restraining orders do not indicate

whether those courts ultimately granted preliminary injunctive relief and on what grounds and

thus are not persuasive.

A preliminary injunction in aid of arbitration should not be granted here for the additional

reason that petitioner has failed establish that this Court has jurisdiction over respondents' bank

accounts. See AKF, 2023 WL 8570844, at *2 (declining to attach respondent bank accounts because

petitioner did not establish that respondents maintained accounts at a branch located within New

York); AKF, Inc. v. SLK Song, LLC, No. 654980/2023, 2024 WL 2420140, at *1 (N.Y. Sup. Ct. N.Y.

Cty. May 17, 2024) ("In any event, the granting of a preliminary injunction would have been im-

proper ... [because] the court lacked jurisdiction over the out-of-state banks that AKF sought to

restrain."). Here, petitioner's submissions demonstrate that all of the parties are Ohio residents.

Further, the OSC demonstrates that Chase was to be served in Indiana. None of petitioner's sub-

missions demonstrates that Chase conducts any relevant business in New York or that respond-

ents maintain bank accounts at a New York branch of Chase, or that respondents maintain ac-

counts at any other banking institutions over which this Court could exercise jurisdiction.

Accordingly, it is hereby:

ORDERED and ADJUDGED that the Verified Petition and motion (Seq. No. 1) are DE-

NIED, and this proceeding is DISMISSED; and it is further

ORDERED that the temporary restraining order set forth in the signed OSC, dated and

entered August 15, 2023, is VACATED and DISSOLVED; and it is further

ORDERED that petitioner shall serve a copy of this Decision and Order upon respond-

ents, JPMorgan Chase Bank, and the Clerk of the General Clerk's Office with notice of entry

within twenty (20) days thereof; and it is further

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Mot. Seq. No.1

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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/13/2024

ORDERED that service upon the Clerk of Court shall be made in accordance with the

procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electroni-

cally Filed Cases (Revised August 15, 2019); 1 and it is further

ORDERED that any requested relief not expressly addressed herein has been considered

and is denied; and it is further

ORDERED that the Clerk shall mark Motion Sequence 1 decided in all court records; and

it is further

ORDERED that the Clerk shall mark this proceeding disposed in all court records.

This constitutes the decision and order of the Court.

August 13, 2024

DATE SHAH

~

N ABID ALLY, A.J.S.C.

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

APPLICATION: GRANTED 0 DENIED GRANTED IN PART

□ OTHER

CHECK IF APPROPRIATE: SETTLE ORDER SUBMIT ORDER STAY CASE

INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

1

The protocols are available at https://www.nycourts.gov/LegacyPDFS/courts/ljd/supctmanh/Efil-protocol.pdf.

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Mot. Seq. No. I

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