Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by plaintiff Silverline Services, Inc. (hereinafter SSI or plaintiff) on January 27, 2023, under motion sequence two, for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability on the claims asserted in its complaint against the defendants Associates of Boca Raton, Inc., D/B/A Re/Max Advantage Plus (hereinafter the corporate defendant) and Jonathan Chadwick Ingram (hereinafter the Guarantor)(collectively as defendants).

• Notice of Motion

• Affidavit in Support

• Affirmation in Support

• Exhibit A to D

• Statement of Material Facts

On June 15, 2022, SSI commenced the instant action for, inter alia, breach of contract by filing a summons and complaint with the Kings County Clerk's office (KCCO). On August 5, 2022, the defendants joined issued by interposing and filing a joint answer with the KCCO. The complaint alleges twenty-five allegations of fact in support of three causes of action, namely, breach of contract, breach of a personal guaranty agreement, and unjust enrichment.

The complaint alleges the following salient facts. On or about February 10, 2022, SSI and the defendants entered into an agreement whereby SSI agreed to purchase all rights to the corporate defendant's future receivables having an agreed upon value of $333,940.02 (hereinafter the Agreement). Pursuant to the Agreement, the corporate defendant agreed to remit to plaintiff 15% of their receivables. The corporate defendant stopped making payments to SSI and breached the Agreement by intentionally impeding and preventing SSI from making the agreed upon ACH withdrawals from the corporate defendant's bank account.

In addition, the Guarantor agreed to guarantee any, and all amounts owed to SSI from corporate defendant upon a breach in performance by corporate defendant. SSI remitted the purchase price for the future receivables to corporate defendant as agreed. The corporate defendant initially met its obligations under the Agreement and made payments totaling $177,943.00, leaving a balance of $155,997.02. Nevertheless, the corporate defendant is alleged to have failed to pay the amounts owed to SSI under the Agreement.

The Guarantor is alleged to be responsible for all amounts incurred because of the corporate defendant's default. There remains a balance due to SSI on the Agreement in the amount of $158,497.02, plus interest, costs, disbursements, and attorney's fees.

Despite SSI's demands, the corporate defendant has failed to remit the purchased amount due pursuant the Agreement. Moreover, the Guarantor is alleged to be responsible for all amounts incurred because of any breach of the corporate defendant. There remains a balance due and owing to plaintiff on the Agreement in the amount of $158,497.02 plus interest, costs, and disbursements.

SSI alleges that corporate defendant has materially breached the Agreement and is intentionally impeding and preventing SSI from receiving the proceeds of the receivables purchased. SSI also alleges that pursuant to the Agreement, the Guarantor personally guaranteed to be personally liable for any loss suffered by SSI.

SSI contends that it is entitled to a judgment against the Guarantor based on the personal guarantee for the sum of $158,497.02, plus interest, costs, disbursements, and attorney's fees.

There is no opposition to the instant motion. However, a summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion, i.e. defaulted (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 278 n [1st Dept 2006], citing Vermont Teddy Bear Co., v 1—800 Beargram Co., 373 F3d 241 [2nd Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the ... court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law"]; see Cugini v System Lumber Co., Inc., 111 AD2d 114 [1st Dept 1985]).

It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a [*3]matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Furthermore, all the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]).

The essential elements of a cause of action to recover damages for breach of contract are "the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach (Cruz v Cruz, 213 AD3d 805 [2nd Dept 2023]).

The elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered (Sarker v Das, 203 AD3d 973 [2nd Dept 2022], citing Financial Assistance, Inc. v Graham, 191 AD3d 952, 956 [2nd Dept 2021]).

In the case at bar, the only sworn testimony submitted by SSI in support of the motion was an affirmation of Jeffrey Zachter, its counsel, and an affidavit of Shmuel Brummel (hereinafter Brummel). Zachter's affirmation contends that the facts in support of the motion are contained in the affidavit of Brummel. He also avers that once the instant action was commenced, the corporate defendant made additional payments totaling $13,345.00 leaving a balance owed on the Agreement in the amount of $142,652.02.

Zachter's affirmation demonstrates no personal knowledge of any of the transactional facts alleged in the complaint. An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance (Nerayoff v Khorshad, 168 AD3d 866, 867 [2d Dept 2019], citing Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept 2006]).

Brummel's affidavit is used to authenticate the Agreement which was allegedly breached by the defendants. Brummel averred that he is the director of Risk Management for SSI and, as such, has personal knowledge of its business practices and procedures. He further averred that the factual allegations proffered in support of the motion for summary judgment are derived from his review of the plaintiff's business records. He then referred to the two documents attached to the motion, namely, the Agreement and a document denominated as a payment history.

It is noted that Brummel did not aver that he was a signatory to the Agreement or that he participated in the execution of same. Neither the complaint nor the motion papers provide any information regarding the amount of funds that were provided to the corporate defendant pursuant to the Agreement. This fact alone raises material issues of fact regarding the plaintiff's performance under the Agreement. Consequently, the plaintiff cannot make a prima facie showing of entitlement to judgment on its claim breach of the Agreement nor the guarantee.

Brummel refers to the payment history, annexed as exhibit B to his affidavit, as proof of [*4]the defendants' default. A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures (Citibank, N.A. v Cabrera, 130 AD3d 861, 861 [2d Dept 2015]). Generally, the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records (Bank of NY Mellon v Gordon, 171 AD3d 197, 209 [2d Dept 2019]). However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures or establish that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business (id. at 209).

Here, the payment history is submitted without explaining it source, or its meaning. It is neither self-explanatory nor self-admitting and there was an insufficient foundation for its admission as a business record. Moreover, Brummel avers that the corporate defendants ceased payment authorizations for daily ACH payments under Bank Code R29 constituting a default of the Agreement. Brummel, however, proffered no business record reflecting this fact. Rather, it merely alleged the fact without proffering any documentary support. It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted (Citibank, N.A. v Potente, 210 AD3d 861, 862 [2d Dept 2022]). Accordingly, evidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness's testimony as to the contents of the records is inadmissible hearsay (Bank of New York Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]). Brummel's averments regarding Bank Code R29 constitutes inadmissible hearsay. In sum, SSI has failed to make a prima facie showing of entitlement to summary judgment on any of the claims it has asserted against the defendants.

The motion by plaintiff Silverline Services, Inc., for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability on the claims asserted against the defendants Associates of Boca Raton, Inc., D/B/A Re/Max Advantage Plus and Jonathan Chadwick Ingram is denied.

A copy of this decision and order, along with notice of entry, shall be served upon defendants and filed with the Court within 20 days of entry.

The foregoing constitutes the decision and order of the Court.