MCA Reconciliation Can’t be Reviewed as “Illusory” if the Merchant Didn’t Even Engage in the Reconciliation Procedure

In Apollo Funding Co v Dave Reilly Construction, LLC, The Appellate Division of the Second Department of the Supreme Court of New York, reversed the lower court’s denial of the plaintiff’s summary judgment motion. For background, Apollo purchased DRC’s future receivables, DRC breached the agreement, Apollo sued and moved for summary judgment, and DRC entered a defense that the agreement was actually an unlawful usurious loan. Based on DRC’s defense the lower court denied Apollo’s summary judgment motion.

Upon Apollo’s appeal in the Second Department, the Court found: “the plaintiff established that the transaction set forth in the agreement was not a loan. The terms of the agreement specifically provided for adjustments to the daily payments by DRC to the plaintiff based on changes to DRC’s daily receipts. Concomitantly, as the amount of the daily payments could change, the terms of the agreement were not finite, and because DRC did not engage in the agreement’s reconciliation procedure, our review of the claim that the process was illusory is precluded [emphasis ours]. Moreover, no contractual provision existed establishing that a declaration of bankruptcy would constitute an event of default.”

The Second Department ruled that Apollo had “otherwise established its prima facie entitlement to judgment as a matter of law on the complaint, and the defendants failed to raise a triable issue of fact in opposition, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint.”

The original case ID in the New York Supreme Court was 035156/2023. The Appellate Division’s Decision and Order was issued September 24, 2025.