The opinion
Matter of AKF, Inc. v Windows & Beyond Interiors,
LLC
2025 NY Slip Op 30447(U)
February 4, 2025
Supreme Court, New York County
Docket Number: Index No. 655532/2023
Judge: John J. Kelley
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.
FILED: NEW YORK COUNTY CLERK 02/04/2025 12:27 PM INDEX NO. 655532/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/04/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JOHN J. KELLEY PART 56M
Justice
---------------------------------------------------------------------------------X INDEX NO. 655532/2023
In the Matter of
MOTION DATE 04/08/2024
AKF, INC., doing business as FUNDKITE,
MOTION SEQ. NO. 001
Petitioner,
-v-
WINDOWS & BEYOND INTERIORS, LLC, VINCENT DECISION, ORDER, AND
CHARLES GEORGES DESHAYES, BAILEY’S BLINDS, JUDGMENT
LLC, and FINE FOOD, INC.,
Respondents.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8,
9, 10, 11, 12, 13, 14, 15
were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT .
AKF, Inc., doing business as Fundkite (AKF), petitions pursuant to CPLR 7510 to
confirm an arbitration award dated October 10, 2023, made by an arbitrator acting under the
auspices of the Mediation and Civil Arbitration, Inc. (MCA). The respondents do not oppose the
petition. The petition is granted, the award is confirmed, and the Clerk of the court is directed to
enter a money judgment in favor of AKF and against all of the respondents, jointly and severally,
in the sum of $173,072.88, plus statutory interest on that sum from October 10, 2023, along with
the sum of $2,000.00, as and for the petitioner’s costs, expenses, and fees in obtaining this
judicial approval of the arbitration award.
On January 7, 2023, AKF entered into an agreement with the respondent Windows &
Beyond Interior, LLC (hereinafter WBI), pursuant to which AKF agreed to purchase $282,436.00
of WBI’s future receivables for the sum of $215,600.00, less service fees in the sum of
$8,809.00, in consideration for WBI’s future repayment of that sum plus 13% in annual interest.
The agreement presumed a weekly “delivery” amount of $7,060.90 from WBI’s receivables, via
655532/2023 AKF INC. vs. WINDOWS & BEYOND INTERIORS LLC ET AL Page 1 of 5
Motion No. 001
1 of 5
[* 1]
FILED: NEW YORK COUNTY CLERK 02/04/2025 12:27 PM INDEX NO. 655532/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/04/2025
an automatic debit from WBI’s bank account, with a monthly reconciliation. The respondents
Vincent Charles Georges Deshayes, Bailey’s Blinds, LLC, and Fine Food, Inc., jointly
guaranteed WBI’s obligations under the agreement. The agreement provided for arbitration of
any dispute under the agreement, including any claims that WBI breached the agreement by
failing to pay its weekly delivery.
AKF alleged in its petition that, beginning on June 22, 2023, it received notice from its
bank that its scheduled weekly debit of receipts from WBI’s designated bank account was
declined because “payment [was] stopped.” AKF further asserted that, as of the date of WBI’s
default, WBI had paid only paid only $145,757.70 of the $282,436.00 ultimately due under the
agreement, leaving a balance of $136,678.30. AKF alleged that, on March 15, 2023, Deshayes,
as WBI’s principal, opened a new business and began “diverting” WBI’s receipts into the
account of that new business.
On June 27, 2023, AKF served the respondents with a demand for arbitration of its claim
for $169,597.88 against them before MCA, doing business as Rapid Ruling, an arbitral forum
with headquarters in New York, New York, and offices located in Manhasset, New York. The
claim consisted of the $136,678.30 then allegedly due and owing under the agreement, plus the
sum of $33,919.58 as and for a “default fee” permitted under the agreement. The respondents
argued to the arbitrator that the purchase agreement actually was a disguised loan that fixed a
usurious interest rate, and that the agreement should be vacated on that ground. In an award
dated October 10, 2023, the arbitrator agreed with AKF’s contentions, and rejected the
respondents’ contention, concluding that,
“[t]he Agreement unambiguously establishes an indefinite term, rather than
repayment in-full on a date certain, establishing an inference that the
Agreement is a purchase of future receivables, rather than a loan, since this
clause, coupled with the Agreement’s reconciliation provision, establishes that
repayment of the funds Claimant tendered under the Agreement could be repaid
in a term well beyond the original contemplated repayment date.”
655532/2023 AKF INC. vs. WINDOWS & BEYOND INTERIORS LLC ET AL Page 2 of 5
Motion No. 001
2 of 5
[* 2]
FILED: NEW YORK COUNTY CLERK 02/04/2025 12:27 PM INDEX NO. 655532/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/04/2025
The arbitrator thus awarded AKF the principal sum of $136,678.30, plus liquidated default fees
in the sum of $33,919.58, along with actual costs and expenses in the sum of $2,225.00, as
required by the agreement, for a total award of $173,072.88. The arbitrator also awarded AKF
interest at the rate 9% per annum on this principal sum, from the date of the award, as well as
the fees and costs to be incurred in obtaining judicial confirmation of the award.
Pursuant to CPLR 7510, the court “shall confirm an [arbitration] award upon application
of a party made within one year after its delivery to him [or her] unless the award is vacated or
modified upon a ground specified in section 7511.” Since the arbitration involved here was
consensual, rather than compulsory, the award may only be vacated if the court finds that the
rights of a party were prejudiced by:
“(i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an
arbitrator appointed as a neutral, except where the award was by confession; or
(iii) an arbitrator, or agency or person making the award exceeded his power or
so imperfectly executed it that a final and definite award upon the subject matter
submitted was not made; or (iv) failure to follow the procedure of this article,
unless the party applying to vacate the award continued with the arbitration with
notice of the defect and without objection”
(CPLR 7511[b][1]). The grounds specified in CPLR 7511 for vacatur of an arbitration award are
exclusive (see Bernstein Family Ltd. Partnership v Sovereign Partners, L.P., 66 AD3d 1, 8 [1st
Dept 2009]), and it is a “well-established rule that an arbitrator’s rulings, unlike a trial court’s, are
largely unreviewable” (Matter of Falzone v New York Cent. Mut. Fire Ins. Co., 15 NY3d 530, 534
[2013]). AKF moved to confirm the award on November 16, 2023 and, thus, its application was
timely made. AKF contends that the award was proper in all respects and that no grounds exist
for modification or vacatur.
The record does not support a finding that the existence of a loan can be gleaned from
the face of the agreement as a matter of law (see Kapitus Servicing, Inc. v Point Blank Constr.,
Inc., 221 AD3d 532, 533 [1st Dept 2023]; Blue Wolf Capital Fund II, L.P. v American
Stevedoring, Inc., 105 AD3d 178, 183 [1st Dept 2013]; see also LG Funding, LLC v United
Senior Prop. of Olathe, LLC, 181 AD3d 664, 665 [2d Dept 2020]). Specifically, the agreement
655532/2023 AKF INC. vs. WINDOWS & BEYOND INTERIORS LLC ET AL Page 3 of 5
Motion No. 001
3 of 5
[* 3]
FILED: NEW YORK COUNTY CLERK 02/04/2025 12:27 PM INDEX NO. 655532/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/04/2025
provided that the term for repayment was indefinite, suggesting that the repayment obligation
may have been contingent rather than absolute, in turn, suggesting a sale and purchase of
receivables rather than a loan (see Kapitus Servicing, Inc. v Point Blank Constr., Inc., 221 AD3d
at 533-534). The court thus concludes that the arbitrator did not render his determination in
“manifest disregard of the law” (Matter of New York State Corr. Officers & Police Benevolent
Assn., 94 NY2d 321, 326 [1999]). In fact, “even in circumstances where an arbitrator makes
errors of law or fact, courts will not assume the role of overseers to conform the award to their
sense of justice” (Matter of New York State Corr. Officers & Police Benevolent Assn., 94 NY2d
321, 326 [1999]; see Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23
NY3d 251, 263 [2014]).
The court thus agrees with AKF’s contentions in connection with the award, and
concludes that AKF is entitled both to the confirmation of the award, and the entry of a money
judgment in the sum of $173,072.88, which had been awarded by the arbitrator, plus the sum of
$2,000.00, which the court finds to be the fees and costs that were incurred in obtaining judicial
confirmation of the award, totaling $175,072.88.
Generally, the total award must bear interest from the date of the arbitration award, that
is, from October 10, 2023 (see CPLR 5002; Board of Educ. of Cent. School Dist. No. 1 of Towns
of Niagara, Wheatfield, Lewiston & Cambria v Niagara-Wheatfield Teachers Assn., 46 NY2d
553, 558 [1979]; Dermigny v Harper, 127 AD3d 685, 686 [2d Dept 2015]; Matter of Levin &
Glasser, P.C. v Kenmore Prop., LLC, 70 AD3d 443, 446 [1st Dept 2010]; Matter of Gruberg v
Cortell Group, Inc., 143 AD2d 39, 39 [1st Dept 1988]). Here, the arbitrator, in fact, awarded
interest from the date of the award. Prejudgment interest, however, shall not be awarded on
this court’s award of $2,000.00 for attorney’s fees and costs that the petitioner incurred in
obtaining judicial confirmation of the award, inasmuch as interest on an award of attorneys’ fees
is the date on which the party seeking those fees has been determined to be the prevailing party
655532/2023 AKF INC. vs. WINDOWS & BEYOND INTERIORS LLC ET AL Page 4 of 5
Motion No. 001
4 of 5
[* 4]
FILED: NEW YORK COUNTY CLERK 02/04/2025 12:27 PM INDEX NO. 655532/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/04/2025
(see Solow Mgmt. Corp. v Tanger, 19 AD3d 225, 226 [1st Dept 2005]), which the court
concludes is the date of entry of this decision, order, and judgment.
Accordingly, it is,
ADJUDGED that the petition is granted, without opposition, and the arbitration award
rendered in the matter entitled Matter of AKF, Inc. v Windows & Beyond Interiors, LLC, et al.,
Mediation and Civil Arbitration, Inc., Case Number 44743/2023, dated October 10, 2023, be,
and hereby is, confirmed; and it is further,
ORDERED that the Clerk of the court shall enter a money judgment in favor of the
petitioner, AKF, Inc., doing business as Fundkite, and against the respondents, Windows &
Beyond Interiors, LLC, Vincent Charles Georges Deshayes, Bailey’s Blinds, LLC, and Fine
Food, Inc., jointly and severally, in the principal sum of $173,072.88, with statutory prejudgment
interest at 9% per annum from October 10, 2023, plus the sum of $2,000.00 as and for the
petitioner’s costs, expenses, and fees in obtaining judicial confirmation of the award.
This constitutes the Decision, Order, and Judgment of the court.
2/4/2025 $SIG$
DATE JOHN J. KELLEY, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
655532/2023 AKF INC. vs. WINDOWS & BEYOND INTERIORS LLC ET AL Page 5 of 5
Motion No. 001
5 of 5
[* 5]