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Funding Metrics, LLC v. D & V Hospitality, Inc.

Citation: 2021 NY Slip Op 04964Docket: 2019-01981

Court: Appellate Division of the Supreme Court of the State of New York; September 15, 2021; New York; State Appellate Court

Original Court Document: View Document

Narrative Opinion Summary

The case of Funding Metrics, LLC v. D. V. Hospitality, Inc. involves an appeal from the Appellate Division of the Supreme Court of New York, which reversed a lower court's decision to vacate a judgment by confession against Carl Vitellino and D. V. Hospitality, Inc. The case centers around a merchant agreement in which Funding Metrics purchased future receivables from D. V. Hospitality, requiring the latter to execute an affidavit of confession of judgment. Following D. V.'s default, a judgment was entered. The defendant moved to vacate the judgment, arguing the agreement was usurious and that no default occurred. The lower court initially granted the motion, but on appeal, the higher court found that a separate plenary action was required to vacate such a judgment. The Appellate Division's decision reinstated the judgment, emphasizing the procedural requirement for a plenary action and dismissing the need to address other arguments. The ruling clarified that Vitellino could still pursue a plenary action to contest the judgment. All judges on the panel concurred with the decision, underscoring the procedural adherence to case law in judgments by confession.

Legal Issues Addressed

Requirements for Judgment by Confession

Application: The judgment by confession was based on a merchant agreement that included an affidavit of confession of judgment to be held in escrow until default.

Reasoning: The agreement required D. V. to execute an affidavit of confession of judgment to be held in escrow until a default occurred.

Usury Defense in Merchant Agreements

Application: The defendant's claim of the merchant agreement being a usurious loan was not substantiated in the motion to vacate the judgment.

Reasoning: The defendant filed a motion on August 9, 2018, to vacate the judgment, claiming the underlying merchant agreement was a usurious loan.

Vacating a Judgment by Confession

Application: The court determined that to vacate a judgment entered by confession, the defendant must initiate a separate plenary action.

Reasoning: In general, to vacate a judgment based on a confession, a separate plenary action must be initiated, as established in case law.