Bizfund LLC v Aid Bldrs., Inc

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Bizfund LLC v Aid Bldrs., Inc 2023 NY Slip Op 31596(U) May 9, 2023 Supreme Court, Kings County Docket Number: Index No. 503829/2023 Judge: Leon Ruchelsman 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. INDEX NO. 503829/2023 FILED: KINGS COUNTY CLERK 05/11/2023 03:23 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ~--~ --------- ------ -- ~ ------- ~----- -x BIZFUND LLC; Plaintiff , Decision and order Index No. 503829/20 23 - against - AID BUILDERS, INC. and ED HASSAN ALBADRY, Defendant s, --- .----x ----.-. ·-·----·-·--·---: ·--·-----· -.--· ··PRESENT: HON. LEON RUCHELSMAN May 9, 2023 Motion.Se quence #1 The defendant has moved seeking to dismiss the lawsuit pursuant to CPLR §3211. The plaintiff opposes the motion. Papers were submitted by the parties and reviewing all the arguments this court ri.ow makes the following determina tion. According to the complaint on December 28, 2022 the defendant s, residents of California entered into a merchant cash agreement: with the plaintiff . The tom.plaint asse.rts that the plaintiff is a Delaware corporatio n with a principal place of business located in Kings County. The defendant s have now moved seeking to dismiss the lawsuit on the grounds the plaintiff cannot maintain subject matter jurisdicti on in New York since it did not conduct business ih New York. As noted, the motion is Opposed. Conclusio ns of Law It is well settled that upoh a motion td dismiss the court must determine , accepting the allegation s of the complaint as true, whether the party can succeed upon any reasonabl e view of 1 of 4 INDEX NO. 503829/2023 FILED: KINGS COUNTY CLERK 05/11/2023 03:23 PM NYSCEF DOC. NO. 15 those facts RECEIVED NYSCEF: 05/11/2023 (Ripa v. Petrosyan ts, 203 AD3d 768, 160 NYSJd 658 Dept., 2022]). [2d Further, all the allegation s in the complaint are deemed true and all reasonabl e inference s may be drawn in favor of the plaintiff (BT Holdings, LLC v. Village Of Chester, 189 AD3d 754 1 137 NYS2d 458 [2d Dept., 2020]). Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, .of course, plays no part in the determina tion of a pre--disC:o very GPLR §3211 motion to dismisE:: (see, Redwood Property Holdings, LLC v. Christophe r:, 211 AD3d 758, 177 NYS3d 895 [ 2d Dept., 2022 l) . Pursuant to BCL §1312 and Limited Liability Law §808 a foreign co:rpo,ratiO n not authorized to do business in t)1.estate of New York may hot maintain any actipns within the state (Pergamen t Home Centers. Inc. v. Net Realty Holding Trust, 171 AD2d 736, 567 NYS2d 292 [2d Dept., 1991}). Article 11. 4 of the Merchant Agreement states that ''any controver sy or claim arising out of or relating to t11is Agreem!2nt or any Ancillary Document or the transactio ns contempla ted hereby qr therel:)y, or any breach hereof or thereof or default hereunder or thereunde r, shall be S'Ubmitted for resolution to a State or federal court sitting in the City, County and State' of New York; which courts shall have exclusive jurisdicti on with respect to any such controver sy or claim. Ea:t:h of the Parties agrees not to assert in any forum that such courts are not a convenien t forum, or that there is a more convenien t 2 2 of 4 INDEX NO. 503829/2023 FILED: KINGS COUNTY CLERK 05/11/2023 03:23 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 05/11/2023 forum, for the resolution of any such controver sy or claim, and waives any and all objection s to jurisdicti on or vehue" (NYSCEF Doc, No. 2]). First, while there iS no dispute the plairitiff is a Delaware corporatio n there is no evidence presented the plaintiff is not authorized to conduct such business in the state of New York. The motion is based upon the complete speculatio n that no such authority exists. More important ly even if BCL §1314(b) (1) applied to this case that may not be a basis to dismiss the lawsuit.. That statute states that a: nonreside nt may not maintain an action against a foreign corporatio n. The statute does enumerate five exception s, namely (1) the action is brought to recover damages arising from the breach of a contract made or to be performed in New York; (2) litigation is within New York; within New York; :the subject matter Of the (3) the cause o.f action arose ( 4 ) the riori ~dornicil ia ry would be subj ect to personal jurisdicti on under Cl?LR §302;' and (5) the defendant is a foreign entity doing business or authorized tt> de business in New York. Thus, there are certainly questions of fact which cannot be summarily decided whether the contract was ''ma.de or to be performed in New York" (ic:i) . To be sure the de.fendant s a.:re residents of Californi a, however, the purchase of the future receivabl es took place in New York. Furthermo re, the forum selection clause specifica lly sta.tes that any lawsuit must take 3 3 of 4 FILED: KINGS COUNTY CLERK 05/11/2023 03:23 PM NYSCEF DOC. NO. 15 INDEX NO. 503829/2023 RECEIVED NYSCEF: 05/11/2023 pl_ace ·:i,11, New York. While that for.um se1ectioh clause may ·not override issues of subject matter jurisdiction , that .Circular a-rgumerit is based upon .the cbnclusory as.s.ertion no authorization - exists. ·Th~·refor~, based on the fcfregoihg the motion see·k-ing to- dismiss the complaint .is denied at this time without prejudice .. The p·a·rties·. s·hall. enga.g.e in ·di_scover-y anci the defendant :may file any further motion in this re9:ard. The d~fendant shall ha~~ thirty days from r~ceipt of thi~ order in which to_ answer the: complaint. So ordered. "ENTER: 2 023 : f?re>oklyn N" ._y. D~TED: May 9:, 4 4 of 4

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