Pre-Settlement Fin., LLC v Ellis

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Pre-Settlement Fin., LLC v Ellis 2017 NY Slip Op 31553(U) June 23, 2017 Supreme Court, Richmond County Docket Number: 150251/16 Judge: Charles M. Troia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: RICHMOND COUNTY CLERK 06/26/2017 04:35 PM 1] NYSCEF DOC. NO. 96 INDEX NO. 150251/2016 RECEIVED NYSCEF: 06/26/2017 . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---~----------------------------------------------------------------------------:x PRE-SETTLEMENT FINANCE, LLC Plaintiff, DCMlM Present: HON. CHARLES M. TROIA DECISION AND ORDER -against- THERESA A. ELLIS, and SCOTT ZUKOWSKI, Index: No. 150251/16 Motion Nos. 2498-001 483-002 Defendants. --------------------------------------------------------------------------------:x The following papers numbered 1 to 6 were fully submitted on the 7th day April, 2017: Papers Numbered Notice of Motion for Default Judgment with E:xhibits (dated June 16, 2016) ................................................................................. 1 Opposition of Pro-Se Defendant Ellis (dated August 4, 2016) ............................................................................... 2 Supplemental Opposition of Pro-Se Defendant Ellis, with Supporting Papers and E:xhibits (dated January 26, 2017) ............................................................................ 3 Cross-Motion of Pro-Se Defendant Ellis to Vacate the Default Judgment, with E:xhibits ......................................................... .4 Plaintiffs Opposition to Cross-Motion (dated February 23, 2017) ........................................................................... 5 Reply by Defendant Ellis (dated April 5, 2017) .................................................................................. 6 Upon the foregoing papers, plaintiff's motion seeking a default judgment is denied. Defendants' cross-motion, inter alia, to vacate the default and to dismiss the complaint as against them is granted. In this action the Court must decide whether a forum selection clause and choice of law 1 of 5 [*FILED: RICHMOND COUNTY CLERK 06/26/2017 04:35 PM 2] NYSCEF DOC. NO. 96 INDEX NO. 150251/2016 RECEIVED NYSCEF: 06/26/2017 provision are applicable and enforceable, and whether in the interest of substantial justice the action should be heard in another forum. On or about March 3, 2016, Pre-Settlement Finance (hereinafter "PSF") commenced this action for monetary damages arising from claims of breach of contract against defendant Theresa Ellis and her husband, Scott Zukowski. Ellis commenced an action for wrongful termination of her employment on or about October 22, 2001, alleging her then employer Ethicon, Inc., failed to accommodate her cognitive disabilities and traumatic brain injuries resulting from an automobile accident. According to the complaint, plaintiff obtained an assignment of rights from defendant Ellis to her proceeds in the underlying action in the United States District Court of New Jersey action titled Ellis v. Ethicon, Inc, Index Number 05-726. On September 23, 2010 plaintiff and defendant Ellis entered an agreement wherein Ellis assigned to plaintiff a portion of her potential proceeds from the New Jersey action and plaintiff advanced to Ellis the sum of $29,000.00. The assignment agreement was executed by defendant Ellis and acknowledged by her attorney in Pennsylvania. Defendant Zukowski was not a party to the agreement. Pursuant to the agreement defendant Ellis authorized her attorney to pay directly to plaintiff its sum due for the purchase of defendants proceeds. On March 7, 2014 the wrongful termination matter was settled. On June 12, 2014, a motion for attorneys fees was filed by the attorney for defendant Ellis. On June 24, 2014, Ellis filed a motion to supplement the motion for attorneys fees and asserted that plaintiff PSF should be paid proceeds in the amount of $100,057.52. On July 10, 2014, by order of the District Court of New Jersey (hereinafter "NJDC") the Clerk of the Court was directed to deposit with the court the sum equal to the settlement amount. Thereafter, on September 9, 2015, the Honorable Peter G. Sheridan, U.S.D.J, directed the parties to submit an order regarding the distribution of funds 2 of 5 [*FILED: RICHMOND COUNTY CLERK 06/26/2017 04:35 PM 3] NYSCEF DOC. NO. 96 INDEX NO. 150251/2016 RECEIVED NYSCEF: 06/26/2017 that were deposited into Court. Pursuant to the September 9, 2015 NJDC order, the attorney for defendant Ellis was to receive attorneys fees and costs in the amount of$14,894.14 and defendant Ellis was to receive the remainder of the settlement. According to plaintiff, the order failed to address plaintiffs claim to the a portion of the proceeds which was received by Ellis. Plaintiff contends it has not received payment and moves for a default judgment against defendants for the sum of$272,374.72 purportedly owed to plaintiff, in addition to attorneys fees in the amount of $10,000.00. Defendants oppose plaintiffs motion and cross move to vacate their default and dismiss the complaint. Defendants contend that this court lacks personal jurisdiction over defendants who are residents of Pennsylvania. According to defendants, Ellis is cognitively incapacitated as a result of a traumatic brain injury and lacks capacity to proceed on her own behalf. Defendants also contend that plaintiff is attempting to secure a lien on a NJDC judgment, affirmed by the Third Circuit Court of Appeals, and that the New Jersey court should interpret its own judgment. In addition, defendant Ellis contends that defendant Zukowski was not a party to the assignment and was removed as a plaintiff prior to trial in the NJDC proceeding and is an improperly named defendant in the instant proceeding. Defendant Ellis contends that she did not receive funds which are purportedly owed to plaintiff. Defendant Ellis also contends that she was represented by counsel in the NJDC proceeding and plaintiff communicated with her counsel. Further, defendants contend that they would face a substantial hardship litigating in this forum. A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its 3 of 5 [*FILED: RICHMOND COUNTY CLERK 06/26/2017 04:35 PM 4] NYSCEF DOC. NO. 96 INDEX NO. 150251/2016 RECEIVED NYSCEF: 06/26/2017 . day in court (Chiantella v Lucy Chiantella Revocable Trust o/2002, 105 AD3d 955 [2nd Dept. 2013]). Here, the parties agreed in a written contract that any disputes would be determined in a Court of competent jurisdiction in New York. However, here in light of the circumstances the selected forum would be so gravely difficult that defendants would, for all practical purposes, be deprived of their day in court. The common-law doctrine of forum non conveniens, articulated in CPLR 327(a), permits a court to stay or dismiss an action where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere (CPLR 327[a]; see Koskar v. Ford Motor Co., 84 AD3d 1317, 1317-1318 [2nd Dept. 2011 ]). On a motion to dismiss on the ground of forum non conveniens, the burden is on a defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation here (see Islamic Republic ofIran v. Pahlavi, 62 NY2d 474, 479 [1984], cert. denied 469 U.S. 1108 [1985]). Here, New Jersey is an available alternate forum, plaintiff's action has no real connection to New York and defendants would face a substantial hardship litigating in this court. Moreover, the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the underlying action, and the burden which will be imposed upon the New York courts, with no one single factor controlling (see Smolik v. Turner Constr. Co., 48 AD3d 452 [2nd Dept. 2008]). Even assuming that this Court has jurisdiction in this matter, as the issues to be decided in this action regard the parties prior New Jersey judgment in the New Jersey District Court action that court is better suited to interpret its own determinations. In addition, based upon the principles of justice, fairness and convenience, this Court is persuaded that New Jersey is a more appropriate forum. ' 4 of 5 ' [*FILED: RICHMOND COUNTY CLERK 06/26/2017 04:35 PM 5] NYSCEF DOC. NO. 96 . INDEX NO. 150251/2016 RECEIVED NYSCEF: 06/26/2017 Accordingly, plaintiffs motion is denied. Defendants' motion to dismiss is granted conditioned on leave to commence the action in New Jersey. This constitutes the decision and order of the court. Dated: June 23, 2017 ENTER, J. S. C. Hon. Charles M. Troia Justice of the Supreme Court .. 5 of 5

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