The opinion
DMF NYC LLC v Tonti's Pizza LLC
2024 NY Slip Op 34307(U)
November 27, 2024
Supreme Court, New York County
Docket Number: Index No. 656602/2019
Judge: Louis L. Nock
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. 656602/2019
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 11/27/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LOUIS L. NOCK PART 38M
Justice
---------------------------------------------------------------------------------X INDEX NO. 656602/2019
DMF NYC LLC,
MOTION DATE 11/04/2020
Plaintiff,
MOTION SEQ. NO. 001
-v-
TONTI'S PIZZA LLC and CHRISTOPHER R. WEDEMEYER, DECISION + ORDER ON
MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 6, 7, 8, 9, 10, 11,
12, 13, 15, 16, 17, 18, 19, and 20
were read on this motion for SUMMARY JUDGMENT .
LOUIS L. NOCK, J.
Plaintiff commenced this action by summons and complaint, alleging breach by the LLC
defendant of an “Agreement for the Purchase and Sale of Future Receivables” (NYSCEF Doc.
No. 8) (the “Merchant Agreement”) and breach by the individual defendant of his guaranty of the
LLC defendant’s obligations under the Merchant Agreement (contained in NYSCEF Doc. No.
8). In addition to the first and second causes of action for breach of contract, the complaint
asserts a third cause under the theory of unjust enrichment and a fourth for attorneys’ fees.
The Merchant Agreement recites a purchase price of $30,000 and a Receipts Purchased
amount of $43,200. The complaint alleges that partial payments have been, leaving a balance of
$28,657.90 for which this action was commenced. Plaintiff now seeks summary judgment on its
aforesaid first three causes of action. The motion is opposed.
Firstly, although the answer asserts 12 affirmative defenses, including one for criminal
usury and two for “Accord and satisfaction” and “Release,” defendants’ opposition (NYSCEF
Doc. No. 16) makes no mention of any of them except for the fourth, “disput[ing] the amount
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and validity of the claimed amount(s) owed” (NYSCEF Doc. No. 5 at 4). In said regard,
defendants submit their attorney’s affirmation asserting that “[p]laintiff never documented the
alleged default by tendering evidentiary proof in admissible form” (NYSCEF Doc. No. 16 ¶ 19).
However, that is not true. Plaintiff has submitted the affidavit of its Chief Financial Officer,
Scott Kaplan (NYSCEF Doc. No. 7) which attests, from personal knowledge, as to “the amounts
due and owing to [plaintiff]” and explains those amounts through exhibiting plaintiff’s detailed
payment and balance statement (id., Exh. “B”). Defendants submit no refutation of that
statement in opposition. To successfully oppose plaintiff’s motion for summary judgment,
supported by the aforesaid showing, defendants must have “produce[ed] evidentiary proof in
admissible form sufficient to require a trial of material questions of fact on which he rests his
claim . . . ; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are
insufficient” (Zuckerman v City of N.Y., 49 NY2d 557, 562 [1980]). Accordingly, insufficient
opposition has been submitted to withstand the first and second causes of action for breach of
contract, based on disputed amount (the fourth affirmative defense).
As for the remaining 11 affirmative defenses, defendants’ failure to address them, at all,
constitutes an abandonment of those defenses (see, Steffan v Wilensky, 150 AD3d 419 [1st Dept
2017]).
Plaintiff’s third cause of action for unjust enrichment cannot coexist with its two causes
of action for breach of contract (see, e.g., Shear Enterprises, LLC v Cohen, 189 AD3d 423 [1st
Dept 2020]). Moreover, it is rendered moot by virtue of the foregoing disposition. Accordingly,
said cause of action is dismissed.
Although the complaint contains a fourth cause of action for attorneys’ fees, no provision
of the Merchant Agreement or the guaranty, as provided to the court (NYSCEF Doc. No. 8),
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contains a clause entitling plaintiff to attorneys’ fees. The Merchant Agreement only goes as far
as stating, in its “Remedies” provision (§ 13.1), that: “The full uncollected Purchased Amount
plus all fees and charges (including legal, and collection fees) due under this Agreement will
become immediately due and payable by Merchant to Funder in full” (emphasis added). A
canvassing of the Merchant Agreement, in its entirety, uncovers no independent attorneys’ fees
provision that could possibly be referenced in the aforesaid “Remedies” provision. Accordingly,
the fourth cause of action for fees herein is dismissed (see, Hooper Assocs., Ltd. v AGS
Computers, Inc., 74 NY2d 487, 491 [1989] [“Under the general rule, attorney’s fees are incidents
of litigation and a prevailing party may not collect them from the loser unless an award is
authorized by agreement between the parties, statute or court rule”]).
Accordingly, it is
ORDERED that plaintiff’s motion for summary judgment on its first and second causes
of action for breach of contract is granted and, therefore, it is
ORDERED that the Clerk of the Court is directed to enter judgment in favor of plaintiff
and against defendants, jointly and severally, in the principal sum of $28,657.90, together with
interest accrued thereon from the date of default – October 28, 2019 (NYSCEF Doc. No. 9) –
and continuing to so accrue until the date of satisfaction of judgment, with costs and
disbursements as taxed by the Clerk upon submission of an appropriate bill of costs; and it is
further
ORDERED that plaintiff’s motion, to the extent it was intended to extend to the third and
fourth causes of action, is denied.
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This will constitute the decision and order of the court.
ENTER:
11/27/2024 $SIG$
DATE LOUIS L. NOCK, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
APPLICATION:
X GRANTED
SETTLE ORDER
DENIED GRANTED IN PART
SUBMIT ORDER
□ OTHER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT
□ REFERENCE
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