Moskowitz, Passman & Edelman v U.S. Claims, Inc.

Annotate this Case

Download PDF

Moskowitz, Passman & Edelman v U.S. Claims, Inc. 2012 NY Slip Op 31494(U) May 31, 2012 Supreme Court, New York County Docket Number: 102161/12 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 61612012 SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PART PRESENT : DONNA M. MILLS 58 Justice .,\JDEXNO. MOSKOWITZ, PASSMAN & EDELMAN und A. SHELDO? 102161/12 MOTION DATE Plaintiff, -V- MOTION SEQ.No. 001 U.S CLAIMS, INC., d/b/a US CLAIMS, MOTION No. CAL Defendant. The following papers, numbered 1 to were read on t h s motion for PAPERS NUMBERED Notice of MotiodOrder to Show Cause-Affidavits- Exhibits.... 13 ., 3 Answering Affdavits- Exhibits ur Replying Afiidavits CROS S-MOTION: YES NO Upon the foregoing papers, it is ordered that this motion is: ( ' 4 t DECIDED IN ACCORDANCE WITH THE ATTACHED ORDER. J!bi 0 6 2072 NEW Yo/;'( Dated: c. J.S. MNNA M. MILLS, J.S.C. Check one: FINAL DISPOSITION NON-FINAL DISPOSITION [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: I A S PART 58 ' X _ - - - - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ MOSKOWITZ, PASSMAN & EDELMAN and A. SHELDON EDELMAN, Index No. 102161/2012 Plaintiffs, - against- CLAIMS, I N C . , d / b / a / U.S. DECISION A N D ORDER US CLAIMS, Defendant. DONNA M. MILLS, J . S . C . : , I NEW YORK This C P L R 3213 action involves a June 30, 2010 @!dBfr[8&+ERKSOFFICE agreement, whereby plaintiff, A. Sheldon Edelman, a partner in the plaintiff law firm of Moskowitz, Passman & Edelman, conveyed to "US Claims" an interest in a specific pending lawsuit, to be repaid upon the final settlement of that lawsuit. Plaintiffs received $30,250 from US Claims, and agreed to pay b a c k $32,576 if paid by September 14, 2010. Pursuant to the terms of the purchase agreement, the amounts required for repayment increased on a monthly basis to reflect an imputed interest charge at a monthly rate of 2.58. Plaintiffs have not repaid the amount due, and interest has continued to accrue, compounding at the monthly rate. Plaintiffs commenced this CPLR 3213 action, seeking a declaration that the loan is usurious and that the loan is therefore void. Plaintiffs also seek a stay of an arbitration that has been noticed pursuant to an arbitration provision contained in the purchase agreement. Plaintiffs move for summary [* 3] judgment pursuant to CPLR 3213, which is captioned, "[mlotion for summary judgment in lieu of complaint," and provides, as pertinent: When an action is based upon an instrument for the payment of money o n l y or upon a n y judgment, the plaintiff may serve w i t h the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint . . . If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise. McKinney's C P L R 3213. Non-party Lifeline Funding, LLC, doing business as US Claims (Lifeline), makes a limited appearance through counsel to crossmove f o r summary judgment dismissing the action on, inter alia, the ground of lack of personal jurisdiction. Lifeline submits the affidavit of Rudolph V. DeGeorge, I1 (DeGeorge), the General Counsel of Lifeline, ,affirming that, while Lifeline does business as US Claims, it is in no way affiliated with an entity by the name of U . S . Claims, Inc. DeGeorge acknowledges that Lifeline entered into the transaction with plaintiffs t h r o u g h its doing business entity, US Claims. By submission of the DeGeorge affidavit, Lifeline has established its prima facie entitlement to judgment as a matter of law, dismissing the complaint, on the ground that plaintiffs have not obtained personal jurisdiction over a jural entity, and have sued a non-existent corporation, shifting the burden to plaintiff to present evidence in admissible form demonstrating [* 4] the existence ,of a question of fact (see Y u n T u n g C h o w v Reckitt & Colman, Inc., 17 NY3d 29, 3 5 - 3 6 [2011]; A l v a r e z v Prospect H o s p . , 6 8 N Y 2 d 3 2 0 , 3 2 4 [1986]; Winegwad v N e w York U n i v . Med. Ctr., 64 N Y 2 d 851, 8 5 3 [1985]). Plaintiffs have failed to present evidence in admissible form sufficient to create a factual issue whether they obtained personal jurisdiction over Lifeline or any legal entity related to the transaction. It is insufficient to allege merely that they had no knowledge of Lifeline. There is also nothing in the record to suggest that t h e r e is any entity involved in the transaction that goes by the name of U . S . Claims, Inc., the P V t Y plaintiffs named in the complaint. While there is nothing in t h e language of CPLR 3213 that would preclude the maker of a note from utilizing the expedited procedure to test the validity of a note, although no reported case appears to so hold, nothing in C P L R 3213 authorizes the court to issue a stay of arbitration, which ordinarily requires a petition under Article 75 of the C P L R , or a motion in a pending proceeding (see C P L R 7502 [a]) . In. the event that plaintiffs obtain personal jurisdiction over Lifeline, and seek to pursue this action, in light of the denial of this motion, upon renewal, plaintiffs should serve a petition in a special proceeding pursuant to Article 75 of the CPLR to seek a s t a y of arbitration. The treatment of the moving and answering papers as a complaint and answer is permissive, [* 5] I . unless t h e court "orders otherwise" ( C P L R 3213), which authorizes a court, as a matter of discretion, to o r d e r the service o f formal pleadings (see S c h u l z v Barrows, 94 NY2d 6 2 4 , 628 [2000]). Accordingky, it is ORDERED that the CPLR 3213 motion of plaintiffs Moskowitz, Passman & Edelman a n d A. Sheldon Edelman for summary j u d g m e n t in l i e u o f complaint, is denied; and it is further ORDERED that the cross motion of Lifeline Funding, LLC, doing business as US Claims, for summary judgment dismissing this action on the ground of l a c k of personal jurisdiction, is g r a n t e d ; and it is further ORDERED that t h e action i s dismissed w i t h costs and disbursements to Lifeline Funding, LLC, as taxed by t h e C l e r k of t h e Court; and it i s f u r t h e r O R D E R E D that the Clerk s h a l l e n t e r judgment accordingly. Dated: sj,,2 / I E N T E R: 4 FILED

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.