Collins Cash Inc. v S & K Mtn. Constr. Inc

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Collins Cash Inc. v S & K Mtn. Constr. Inc 2022 NY Slip Op 32955(U) August 31, 2022 Supreme Court, Kings County Docket Number: Index No. 502259/2020 Judge: Richard J. Montelione Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 09/02/2022 11:59 AM NYSCEF DOC. NO. 26 INDEX NO. 502259/2020 RECEIVED NYSCEF: 09/02/2022 At an IAS Term, Part DJMP ofthe Supreme Court of the StateofNew York, held in and for the County ofKings;. at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the_th day of ., 2022. P R E S EN T: HON. RICHARD J. MONTELIONE Justice. AUG 3 l 2022 ·-------- ·-· ---· ---------------------· ---- ·--------------· -------------X COLLINS CASH INC d/b/a SMART BUSINESS FUNDING DECISIONand ORDER Plaintiff, -against- Index No,:502259/2020 S &K MOUNTAIN CONSTRUCTION INC Defendant. --- . ---.. -------. ---. - .- .--------. ----- . ------------. ---- .---. -------X Mot. Seq; 1-2 The·following e-filed papers read herein: NYSEFNos,: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed._ _ _ _ _ _ _ _ _ __ Opposing Affidavits (Affirmations)_ _ _ _ _ _ _ _ __ Affidavits/ Affirmations in Reply _ _ _ _ _ _ _ _ __ 4-5, 11-'12, 14 19. 22-23 24 In this action seeking payment of fees allegedly earned by plaintiff for securing a business Joan for the defendant, plaintiff moves for a default judgment pursuant to CPLR 3215 on its causes of action for breach of contract, and unjust enrichment, upon the grounds that the defendant, S & K Mountain Construction Inc, has defaultedin appearing and answeringin this action. Defendant cross moves in opposition to the motion and for an order dismissing the action on the grounds ofimproper service and lack ofjurisdiction over the defendant, whohas not done businessin New York nor is otherwise connected to the State of New York. The summons and .co111ph1int w~re s·erv~d on defendant corporation at its place of business in Walla.Walla, Washington, on January 29:, ·2020. Defendant filed an answer [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 09/02/2022 11:59 AM NYSCEF DOC. NO. 26 INDEX NO. 502259/2020 RECEIVED NYSCEF: 09/02/2022 Collins Cash Inc. v. S &KMountain Construction; Inc., 5022~9/2020 prb-se on February 13, 2020. Plaintiff correctly contends thatthe defendant corporation could not appear in an action pro se and needed to be represented by an attorney or the answer would be a nullity. See CPLR 321 (a). In opposition, defendant filed a cross motion by its retained New York counsel, seeking to excuse the late answer and cross-moved to dismiss. Plaintiffs tnotionfor a default (filed March fl, 2020) was made barely forty days from the service ofthe summons and complaint on January 29; 2020. Defendant'spro-se. answer wasJiled on February 13, 2020, well within the twenty {20) days set forth in CPLR 320(a}. Although the answer may be deemed a nullity as it was not filed by counsel, plaintiff did not file any rejection of the answer, or bthetwise advise the out-of-state, pro,..se litigant that the answer was defective until the defaultjudgment motion was.filed. The flaw inthe·answer was immediately corrected by virtue of the cross motion filed by counsel, a mere twelve days later; on March 23, 2020, seeking to, among other relief, direct the plaintiff to accept the answer. In its cross-motion in opposition, defendant contends thatit had no direct relationship with plaintiff; that plaintiffs action is based upon predatory lending practices; that the service ofthe summons and complaint was defective by virtue ofa failure to give notice ofe-filing, and that the defendant is not subject to the jurisdiction of the State of New York. "A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015(a) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense'' (Natanelv Plaza Int Co., 200 AD3d 890, 891; see CPLR 50 l 5[aJ[ 1]; Elderco, Inc. v Kneski &$ons, Inc,, 183 AD3d 703, 703 ). "Whether there is a reasonable excuse for a default is a discretionary; sui generis deterniinationto he made by the court based onall relevant factors, including the extentofthe delay, whethe;:r there bas been prejudice to the opposingparty, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Natanel v Plaza Ins. Cai, 200 AD3d at 891 [internal quotation marks omitted]). Here, given the totality of all relevant factors, including theJack of any evidence of willfulness by the. defendant, who answered promptly,· though technically ineffectuaily, the short delay in correcting the flawed filing_ of the answer, the lack of any ·· denionstrab le prej µdice to the plaintiff whatsoever in the short delay,. and the strong public p9li cy in. favor· of re;solving cases on the merits, the defendant. established a· reasonable.exci:ise for its default (see id.;.Stdngo -y Byrnes; 200 AD3d 821, 823; Garcia v City ofNew York, 189 AD:3d 788, 789; P&H Painting, Inc; v Flintlock Cons tr. Servs., LLC, 179 AD3d 1086; 1087). In addition, the defendant established. a potentially meritorious -defense to the action. 6 Crannell Street, LlC, et al., v Urban Green Page2 of 4 .... ... [* 2] ,.,~ .,.,.,_,..,.._, ______ 2 of 4 - - - • "•••••-••• .. • .. •••••-... . - , . . , y , . - , • - - - - --••'"''•'""'OY,,-,,,,,~,_.,,,~,•-•••••,,•o.-Y,N,_.,•••••---.. .,._• .. ,,,,~,_.,,,,,.,,,,,,,,,,,,-,.,,_.•••••'"•".,._,~,,,,~,_.,,,~~•,_,.,._.,,,.....,_.,,.,-,.,• .. ,oy,, ....... ,_ .•. ,~~•-•••••,,•0.-.,,..,, ..... ,...........,, INDEX NO. 502259/2020 FILED: KINGS COUNTY CLERK 09/02/2022 11:59 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/02/2022 Collins Cash Inc; v. S& K Mountain Construction, Inc., 502259/2020 Equities, LLC, 207 A.D.3d 603, 604, 170 N,Y.S.3d476, 477 [2022]). With regard to defendanfs cross-motion, the complaint alleges that the work that the plaintiff did for defendant was performed in New York and defendant acknowledges that it had contacts with a New Yorkfinn attempting to aid in brokering the loan in issue. Additionally, defendant contends thatthe service of the summons and complaint was defective because the process server did not serve notice of electronic filing as required in Rule 202.5-l>, and contends that the complaint should be dismissed under CPLR 2102 (c) and 22 NYCRR §202.5(d)(l)(v)(D). ·"When a defenda,nt. seeking to. vacate a defaultjµdgment raises a jurisdictional objection pursua,nt to CPLR 5015 (a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to granta discretionary vacatur of the default under CPLR 5015(a)(1 Y' (Roberts v Anka, 45 AD3d 7 52, 7 SJ). A New York Court may exercise jurisdiction, pursuant to CPLR 302, where: 0 (a) Acts which are the basis of jurisdiction. As to a cause ofaction arfsing from any of the acts enumerated in this secti on, a court may· exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: l. transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state; except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing inj tiry to person or property within the state, except asto a cause of action for defamation of character arising from the act, ifhe (i) regularly does or solicits business, or engages in arty other persistentcourse of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably. expect the· act to have consequences in the state and derives substap.tialtevenue from interstate or international commerce ... Page 3 of4 3 of 4 [* 3] -------··············-··-·····--··-··----------------- ---··-·--···-···························-··---···· INDEX NO. 502259/2020 FILED: KINGS COUNTY CLERK 09/02/2022 11:59 AM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/02/2022 Collins Cashlnc: v. S& KMountain Construction, Inc., 502259/2020 Here, defendant does not fit withinany of the categories which would provide the court withajurisdictionalbasis to hear to matter. CPLR 302. There is a contract that refers to a loan that was actually fundecl, and this agreement clearly provides as between the parties to the contract, and their '~affiliatest which is undefined, shall arbitrate in Montgomery County, Maryland (NYSCEFNo. 8). To the.extentplaintiff can be seenas an ''affiliate" or otherwise a third-party beneficiary under this contract(NYSCEF No. 8), plaintiff is precluded from commencing an action in New York under its specific terms. Notwithstanding the applicability of this contract, the plaintiffhas not provided the court with any basis showing that defendant ever transacted business in New: York which would allow for an action in breach of contract (Cf Skutnik v. Messina, 17:8 A.D.3d 744). Accordingly, it is ORDERED that plaintiffs motion for a default judgernent is denied in its entirety, and it is further · ORDERED that defendant's cross.,motion is granted and the complaint is DISMISSED. Any additional relief not explicitly granted herein is denied. The foregoing constitutes the decision and order of the court. ENTER Hon. Richard J. Montelione, J.s~c. Page 4 6£4 [* .................... 4] .,..,.,.,_ _______ _____________ . 4 of 4 ....... ,_, .................... ____ ----··--... ... ., _. .................. ,.. , . , .... .... ,....................... .-

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