Mancini Earth & Pipe LLC v Seamless Capital Group, LLC

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Mancini Earth & Pipe LLC v Seamless Capital Group, LLC 2023 NY Slip Op 33250(U) September 12, 2023 Supreme Court, Kings County Docket Number: Index No. 517042/2022 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. 517042/2023 FILED: KINGS COUNTY CLERK 09/19/2023 01:31 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/19/2023 SUPREME COURT OF THE~ STATE OF NEW YORK COUNTY OF KINGS : GiiJIL TERM: COMMERCIAL 8 -- . --·--. ·-.--.-· .____ ,. ·. ;· ·-. -- ··--· ------ ·-·---.--x MANCINI EARTH & PIPEI LLC, MANCINI DEVELOPMENT CORP, :MANCINI FIGHT CLUB, LLC, MANCINI HEAVY HAULING, LLC, .MANINCI MARITIME INVESTMENTS~ LLC, MANCINI PROMOTIONS, LLC, MANCINI RIV.ALTA FIGHT CLUB, LLC, SOUTH END~CIVIL HOLDINGS, LLC, SOUTH END CIVIL, INC~, A.B.B. INVESTMENT GROUP, LLC, ANYTIME fITNESS WESTCHASE INC., MANCINI COMPANIES, M,A.NCINI CONCRETE AND MASONRY, INC., BRITCb, LLC, FGG, LLC, LOR/MAR .. ENTERPRISES, INC. , atid MARTIN MANCINI, . Plaintiffs, - against - Decision and order Index No. 517042/2022 SEAMLESS CAPITAL GROUP, LLC and HARBOR INTERNATIONAL, LLC, Defendants, . -----·------.----.-.-: . : ----- .--------.---·-- .-·x September 12, 2023 PRESENT: HON. LEON R~CHELSMAN Motion Seq. #1 The defendant Harbor Inte.rnational LLC has moved pursuant to CPLR §3211 seeking to dismiss the complaint on the grounds of lack of jurisdiction,and for the failure to state any cause of action. The plaintiffs have opposed the motion. Papers were submitted by the parties and after reviewing all the arguments this court now tnakes:the following determination. According to the complaint .on A:pril 14, 2023 the defendant Harbor International'LLC purchase;d approximately $9QO,bOO of plaintiff's future receivables for $600,000. 'I'he complaint alleges that althoug~ the agreement is not characterized as a loan. in fact the ag:i:~etn1=.nt wa.s a usurio.us loans. alleges two causes 6+ actidn, one for . : [* 1] 1 of 6 breach The complaint of ce>rttract and one INDEX NO. 517042/2023 FILED: KINGS COUNTY CLERK 09/19/2023 01:31 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/19/2023 for violations of lBiusc §1343; the Federal wire fraud statute. As noted the defendant has filed a motion to dismiss. : . defendant argues that . : ; . The Harbor International is an Idaho entity with its sole memberlresiding in Florida and the plaintiffs are all Florida resident~. New York. Thus, this lawstiit has no connect~on to Further, the defendant argues that pursuant to BCL §1314 foreign entiti~s may not sue other foreign entities in New York except under certain exceptions not applicable here. Lastly, t:he defendant argues that in .any event the complaint does not allege any validlcauses of .action. As noted the plaintiffs oppose the motion. Conclusions of Law . . "[A] motion ~b dismiss ni.ade pursuant tb CPLR §32 ll[a] [7] will fail if, taking all facts alleged as true and according them 1 e:very possible inference favorable. to the plaintiff, the complaint states in ~ome recognizable form. any cause of ac.tion known to our law;' {s'ee, AG Capital Funding Partners, LP v. State St. Bank and Trust Co., 5 NY3d 582, 808 NYS2d 573 [2005]). Whether the complaint± will later survive a motion for summary judgment, or whetherlthe- plaintiff will ultimately be able to prove its claims, of!course, plays no part in the determination of a pre-discovery C:I?LR §3211 motion to dismiss ( ~ , EBC L v. Goldman Sachs & Go., 5 NY:3d 11, 799 NYS2d 170 [2005]), 2 [* 2] 2 of 6 Inc. INDEX NO. 517042/2023 FILED: KINGS COUNTY CLERK 09/19/2023 01:31 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/19/2023 It is well settied that the parties to an agreement may freely select any :forum to reso1 ve any disputE:!s regarding the interpretation or pe:j:formance of the agreement (Brooke Group v; JCH Syndicate 488, 87 NY2d 530, 640 NYS2d 479 [1996]). Further, a forum selection cl~use is prima facie valid "unless it is shown by the challenging p$.rty to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overread1ing, or it is shown that a trial iri the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court" (see, Stravalle v. Land Cargo Inc., 39 AD3d 735, 835 NYS2d 606 [2d Dept., 2007]) . tn this case the agreement states that "any suit, action or proceeding arising. hereunderf or the interpretation, perft;,rmance· or breach of this Agreement, shall, if Buyer so elects; be instituted in any court sitting in NY" (see, Agreement for the Purchase and Sale of Future Receipts, (]120 [NYSCEF Doc. No. 18]I. only requires the Thus, l:)y its very terms the agre.ement buyer, the defendant irt this ca.se to commence any action in New Yo.rk. There is no similar language authorizing the seller plaintiff:to utilize New York courts pursuant to the forum selection clau~e. The fact the clause is non-mutual does not render it invalid (Medoil Corp., v. Citicorp., 729 F,Supp 1456 [S.D.N.Y. 1990]L. Therefore, the plaintiffs cannot avail themselves of the fOrum selection clause and will be required to 3 [* 3] 3 of 6 INDEX NO. 517042/2023 FILED: KINGS COUNTY CLERK 09/19/2023 01:31 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/19/2023 demonstrate j ~risdiction utilizing the long arm statute. In Johnson v, Wafd, 4 NY3d 516, 797 NYS2d 33 [2005] the court held that "long-arm Jurisdiction over a nondomiciliary exists where (i) a defendant transacted business within the state arid {ii) the cause of action arose from that transaction of business. If either prong of tlhe statute is not met; jurisdiction cannot be conferred under CPLR ! 3 02 (a) ( 1) " (id) . In Agency Rent A Car System Inc., v~ Grand Rent A Car Corp., 98 F3d 25 [2d Cir. 1996] the court explained Jhat ''the question of whether an out-of '-state defendant transacts pusiness in New York is determinecl by considering a variety of factors, including: (i) whet.her the defendant has an on~going contractual relationship with a New York corporation ... (ii) whether the contract was negotiated or ' . . executed in New York,, and whether, after executing a contract with a New York business, the d<:!fendant has visited New York for the purpose of meeting with parties to the contract regarding the relationship ... {iii) I what the choice~of-law clause is in any such contract ... and (iv) whether the Contract requires franchisees to send notices and payments into the forum state or subjects them to supervision by th~ corporation in the forum state.,.Although all are releyant, no'one factor is dispositive. Other factors may also be considered, and the ultimate determination is based on the totality o.f the circumstances" (id). Thus, a non- domiciliary may be s~bject to the jurisdiction of New York courts 4 [* 4] 4 of 6 INDEX NO. 517042/2023 FILED: KINGS COUNTY CLERK 09/19/2023 01:31 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/19/2023 where that individua "transacts any business within the state or contracts anywhere t¢ supply goods or services in the state" CCPLR §302 (a)). "Although it is impossible to precisely fix those acts that co:nst:itute a transaction of business" case law has established that "it is the quality of the defendants' New York contacts that i~ the primary consideration" (see, Fischbarg v. Doucet, 9 NY3d 37t, 849 NYS2d 501 [2007]). In this case t,he agreement was not negotiated in New York, does not involve any'performance in New York1 no business was transacted in New York and there was never any physical presence in New York. Rather) the plaintiffs argue that since the agreement requires p~yment to be received in New York and a forum selection clause manq.ates the seller commence any action in New York therefore the p:J..aintiffs transact business in New York. However, "the requiri:kment that freight payments be made to another party 1 s New York bank account does not provide an adequate basis for p1rsonal jurisdiction" ( ~ , Transatlantic Shiffahrtskontor Gm.Bh v. Shanghai Foreign Trade Corp., F.Supp. 326 [S.0.N.Y. 1998]). 996 Again, in First City Federal Savings Bank v. Dennis, 680 F.Supp. 579 [S.D.N.Y. 1988] the court explained that "it is well-settled that the mere designation of New York as the site!for payment On a promisso~y not~ i~ insufficient to confer jurisdiction over a nonresident defendant" (id). Consequently, the mere fact the payments were required to 1 5 [* 5] 5 of 6 INDEX NO. 517042/2023 FILED: KINGS COUNTY CLERK 09/19/2023 01:31 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/19/2023 be made and receivec:li in New York does not confer jurisdiction upon the defendant. Moreover, although it is curious the agreement would requ~re a cause of action to be filed in New York that does not mean, •:i.n the totality, that any business was transacted in New York. Indeed, a:s noted, no business was transacted in New York at all. Further, pursuapt to BCL §1314 (b) (1) a nonresident may not maintain .an action against a foreign corporation. T.he statute does enumerate five:exceptions, namely (1) the action is brought to recover damages cJ.pising from the breach of a contract made or to be performed iri New York; (2) the subject matter of the litigation is within!New York; within New York; (3) the cause of action arose {4): the non-domiciliary would be subject to personal jurisdictior under CPLR §302; and (5) the defendant is a foreign entity doing business or authori.zed to do business in New 1 York. Thus, none oL those exceptions permit the plaintiff to file suit in New Yor)<. Therefore,. based on the foxegoing, the motion .se.eking to dismiss the complaint based upon lack of jurisdiction is granted. So ordered. ENTER: DATED: September 12, 2.0.23 Brooklyn. N. Y; Hon •. Leon Ruchelsman JSC 6 [* 6] 6 of 6

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