Opinion
Index No. 514223/2022
10-25-2022
LIBERTAS -FUNDING LLC, Plaintiff, v. ULTIMATE JET LLC D/B/A ULTIMATE AIR 'SHUTTLE; ULTIMATE' JETCHARTERS, LLC .D/B/A ULTIMATE AIR SHUTTLE; WOOSTER OHIO INVESTMENTS. LLC; MRBH CAPITAL. LLG and JOHN GORDON, Defendants,
Unpublished Opinion
DECISION AND ORDER
The defendant has moved pursuant to. CPL'R §2221 seeking to renew and. decision and order decided September 19', 2022 granting: the plaintiff summary judgement. The defendant opposes the motion and has cross-moved seeking sanctions. That motion is opposed. Papers were submitted by the parties and: after reviewing all the-, arguments this court now makes', the following determination.
As recorded in the prior order, on October 29, 2019 and November 25, 2019, the plaintiff a merchant cash advance funding provider entered into contracts with defendants whereby plaintiff purchased $1,111,525 and $744,625 respectively of defendant's future receivable for $365,000 and $575,000. The defendant John Gordon guaranteed both agreements. The plaintiff asserted the defendants stopped remittances in March 2022 and owed $59.9, 839.40 and $302,187 for a total of $902,206.40. The court granted the plaintiffs motion for summary judgement holding that the existence and use of a reconciliation, provision, in, the. agreements did not establish any novation absolving defendant from his guarantees. Upon .renewal the defendant John Gordon asserts that while the summary judgement motion was pending he sold his interest, in Wooster Ohio In vestments' LLC: to an entity called Alberta Air LLC and that pursuant to the .agreement Alberta. assumed any liability Mr. Gordon .maintained, under the merchant cash agreements. Thus, the sale to Alberta "nullifies any conceivable obligation Mr. Gordon could have had under, the. Guaranty" (see> Memorandum of Law in Support, page 1 [NYSCEF Doc No... 48]) and therefore seeks renewal based upon these hew facts. As noted, the plaintiff opposes the motion.
Conclusions of Law
It is true that generally, a motion to renew must Contain evidence that existed at the time the original motion was 'filed but was unknown to the moving party' (Brooklyn Welding Corp., v. Chin, 236 A.D.2d 392, .653 N.Y.S.2d 631 [2d Dept ., 19.9,7'] However, that rule has been defined, as 'flexible' and a party may file a motion .to renew even if the evidence was known, at the time of the Original motion provided the party offers a reasonable explanation why the additional facts were not included within the original motion (Progressive Northeastern Insurance Company v. Frenkel, 8; A.D.3d 390, 777 N.Y.S.2d. 652 [2d Dept., 2004]).
Article 2.2 of ;the. Wooster Ohio Investments, LLC Membership Units Purchase/Sale Agreement states that Alberta will "assume, pay and hold harmless, and indemnify" many Of Gordon's debts including the amount of $400,000 owed to the plaintiff (id [NYSCEF Doc. No. 46]) - However, the guarantees signed by Gordon state that "neither Merchant nor Guarantor shall have the right to assign their respective rights or obligations under this Agreement without first obtaining Purchaser's written consent" (see, Agreements of Sale of Future Receipts, f 48 [NYSCEF Doc. No. 2 and 3]). Thus, the. plaintiff need not pursue any claims against Alberta since the agreement between Alberta and Gordon could not affect, the plaintiff's- rights in any way. Gordon responds that Alberta, should be. joined and added to this: lawsuit so that the rights of all. the parties can be resolved in one. seamless action.
CPLR §1001(a) states that joinder of a party is appropriate "if complete relief is, to be accorded between the persons who are parties to the action or- Who might be inequitably affected by a judgment in the action"' (id), However, In this case Alberta is hot "necessary" for the plaintiff to pursue Its claims against Gordon. Indeed, the agreement between plaintiff and Gordon prohibited Gordon from allowing any other entities to be responsible for Gordon's debt without the plaintiff's consent. Rather, Gordon, may commence any action against Alberta pursuant to the agreement they contracted among themselves. Those subsequent agreements hardly classify Alberta as necessary to this action. This is particularly true since Alberta is unaffected by any decision against Gordon, and could present any claims against Gordon himself (American Realty Company v. 64 B Venture, 176 A.D.2d 226, 574 N.Y.S.2d .344 [1st Dept., 1991]). Moreover, any discrepancy between the: amount owed the plaintiff and the amount contained in the agreement with Alberta does hot concern the plaintiff at all and is only between Alberta and Gordon.
Therefore, based oh the foregoing the motion seeking renewal is denied.
The cross-motion seeking sanctions, is denied.
So ordered.