Pinnacle Bus. Funding, LLC v Muharib

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Pinnacle Bus. Funding, LLC v Muharib 2023 NY Slip Op 33680(U) September 5, 2023 Supreme Court, Kings County Docket Number: Index No. 504416/2023 Judge: Ingrid Joseph 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 10/20/2023 04:14 PM NYSCEF DOC. NO. 16 .. •• INDEX NO. 504416/2023 RECEIVED NYSCEF: 10/20/2023 lAS Part Part 83 of of the the Supreme Supreme Court Court of of the At an IAS State of of New York held held in and for the County County New York State New Brooklyn, New of Kings 360 Adams Street, Brooklyn, Adams Street, Kings at 360 of xpkrnbtft.023. of day York, the SH1 day of S<.pI<rnbtf2023. 5ffi the on York, PRESENT: HON. HON. INGRID INGRID JOSEPH, JOSEPH, J.S.C. J.S.C. PRESENT: SUPREME COURT COURT OF THE THE STATE STATE OF SUPREME NEW YORK COUNTY COUNTY OF KINGS KINGS NEW YORK ----------------------------------------------------------------------)( ------------------ ------------------ ------------------ -----------. ----X PINNACLE BUSINESS BUSINESS FUNDING, FUNDING, LLC LLC PINNACLE Plaintiff(s)s) Plaintiff( -against-against- Index 504416/2023 Index No: 504416/2023 ORDER ORDER BONDS, and ANTHONY d/b/a ONLINE ONLINE BONDS,.and MUHARIB d/b/a ANTHONY S MUHARIB ANTHONY S MUHARIB MUHARIB ANTHONY Defendant( s) Defendant( ----------------------------------------------------X ----------------------------------------------------------------------)( -----------------The following following e-filed e-filed papers papers read read herein: herein: The Annexed Affidavits Annexed Notice of Motion/Affirmation Support/Affidavits Motion/Affirmation in Support/ Notice of Exhibits Annexed/Reply Annexed/Reply .......... . Exhibits Affirmation in Opposition/Affi Opposition/Affidavits Annexed/Exhibits ts Annexed Annexed ........... . davits Annexed/Exhibi Affirmation NYSCEF Nos.: NYSCEF Nos.: 3-9; 14 3-9; 10-13 10-13 In this this action, action, ANTHONY ANTHONY S MUHARIB MUHARIB d/b/a d/b/a ONLINE ONLINE BONDS BONDS ("Company ("Company move for a pre-answer Defendant"), and and ANTHONY ("Muharib") move pre-answer dismissal dismissal of of MUHARIB ("Muharib") ANTHONY S MUHARIB Defendant"), pursuant to prejudice pursuant PINNACLE BUSINESS BUSINESS FUNDING, FUNDING, LLC LLC ("Plaintiffs") ("Plaintiffs") complaint complaint with with prejudice PINNACLE CPLR §S 3015(b) 30 15(b) on the the grounds grounds that that Plaintiff Plaintiff is unregistered unregistered in New N ew York York in violation violation of of CPLR Law § Limited Company Law S 808. Liability Company Limited Liability between Plaintiff This matter matter arises arises out out of of a contractual contractual dispute dispute between Plaintiff and and Company Company This Defendant about about a Standard Standard Merchant Merchant Cash Cash Advance Advance Agreement Agreement ("The ("The Agreement"), Agreement"), entered entered Defendant rights of purchase all rights into about August agreed to purchase of company company Plaintiff agreed wherein Plaintiff 2022, wherein August 11, 2022, into on or about price for the purchase price Defendant's future future receivables receivables valued valued at $112,425.00. $112,425.00. The The purchase the receivables receivables Defendant's $75,000.00. Additionally, Additionally, Defendant Defendant Muharib Muharib personally personally guaranteed guaranteed any and all amounts amounts was $75,000.00. performance. In the complaint, breach in performance. owed to Plaintiff Company Defendant, complaint, upon a breach Defendant, upon Plaintiff from Company owed Plaintiff alleges alleges that that on or ~bout about October October 05, 2022, 2022, Company Company Defendant Defendant breached breached the _ Plaintiff Agreement by blocking blocking and and depriving depriving Plaintiff Plaintiff of of its daily daily withdrawals withdrawals from from the specified specified bank bank Agreement that Company account while conducting regular operations. Plaintiff Plaintiff claims claims that Company business operations. regular business while still conducting account leaving a balance Defendant has has paid paid a total total of of $24,273.00 $24,273.00 to Plaintiff Plaintiffleaving balance due and and owing owing in the Defendant amount of of $88,152.00. $88,152.00. amount the Complaint that the of law law in support, support, Defendants argue that Complaint falsely falsely Defendants argue memorandum of his memorandum In his states that that Plaintiff Plaintiff is "an "an entity entity organized organized under under the the laws laws of of the the United United States States of of America" America" in states [* 1] violation of of CPLR CPLR 2015(b 20 15(b). Defendants claim claim Plaintiff is a domestic domestic entity entity organized organized under under ). Defendants violation 1 that of 4Plaintiff INDEX NO. 504416/2023 FILED: KINGS COUNTY CLERK 10/20/2023 04:14 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/20/2023 that argue that Defendants argue the State State of of Maryland Similarly, Defendants New York. Similarly, unregistered in New and is unregistered Maryland and New York because Plaintiff is a foreign foreign corporation corporation not registered registered to do business business in New York that that there there is because Plaintiff Alternatively, BCL 1314(b). no subject subject matter state pursuant pursuant to BCL 1314(b). Alternatively, jurisdiction for it to sue in the state matter jurisdiction Defendants also also argue argue that that as an unregistered unregistered limited limited liability liability company company ("LLC"), ("LLC"), Plaintiff Plaintiff Defendants proper without a proper the state cannot action, suit, or special proceeding court in the state without proceeding in any court or special maintain an action, cannot maintain certificate of of authority authority and and also also that that Plaintiff Plaintiff violated violated the law law by not not conducting conducting business business under under certificate LLC. NY LLC. Funding NY Business Funding their fictitious name, Pinnacle Business name, Pinnacle their fictitious 5(b) and BCL opposition, Plaintiff Plaintiff states states that that CPLR CPLR 30 l15(b) BCL 1314 are inapplicable inapplicable In opposition, BCL 1314 that BCL Assuming arguendo because company, not corporation. Assuming arguendo that not a corporation. liability company, limited liability because it is a limited apply, Plaintiff Plaintiff argues argues that that the exceptions exceptions under under sections sections BCL BCL 1314(a), 1314(a), (b)(l), (b)(1), (b)(4), (b)(4), and did apply, LLC Maryland LLC that it is a Maryland Plaintiff states apply granting authority to sue. Moreover, states that Moreover, Plaintiff granting it authority would apply c) would ((c) authorized to do business business in New York as evidenced evidenced by their their application application for a certificate certificate of of New York authorized York, New York, Brooklyn New Avenue U Suite authority and that office located Suite 1115, 1115, Brooklyn located at 1202 Avenue that it has an office authority which was also also listed listed in the the Agreement. Agreement. Plaintiff Plaintiff claims claims that that the the choice choice of of law law and 11229, which jurisdiction in Defendants consented forum selection selection clauses clauses in the establish that consented to jurisdiction that Defendants Agreement establish the Agreement forum New York. New York. the complaint CPLR 30 15(b) states that corporation, the complaint shall shall so state state party is a corporation, where any party that where l 5(b) states CPLR where known, known, it shall shall specify specify the the state, state, country, country, or government government by or under under whose whose laws laws the and, where proceeding by a foreign party created. Additionally, action or special special proceeding foreign permits an action BCL 1314 permits Additionally, BCL was created. party was corporation to be maintained maintained against against another another foreign foreign corporation corporation in certain certain instances. instances. Here, Here, as corporation Plaintiff is a limited that Plaintiff undisputed that evidenced by Plaintiffs certificate of of authority, authority, it is undisputed limited Plaintiffs certificate evidenced New liability company company organized organized under under the the laws laws of of Maryland Maryland and authorized authorized to do business business in New liability Defendant is a LLC. Company NY LLC. Funding NY York fictitious name Company Defendant Business Funding Pinnacle Business name Pinnacle under the fictitious York under proprietorship. Neither party is a corporation corporation or foreign foreign corporation corporation as defined defined by the BCL, BCL, Neither party sole proprietorship. inapplicable. BCL 1314(b) therefore CPLR 3015(b) 30 15(b) and and BCL 1314(b) are inapplicable. therefore CPLR Accordingly, those those branches branches of of Defendants' Defendants' motion motion to dismiss dismiss are denied. denied. Accordingly, that a foreign Limited Liability Liability Company Company Law Law 802(a)(ii)(l) 802(a)(ii)(1) states states inter inter alia alia that foreign LLC LLC shall shall Limited apply for authority authority to do business business in this this state state by submitting submitting to the department department of of state state ... an apply application for authority authority as a foreign foreign limited limited liability liability company company ... ... signed signed and and setting setting forth ... ... the application name of of the foreign foreign limited limited liability liability company company and, if if a foreign foreign liability liability company's company's name name is not name this chapter, acceptable for authorization authorization pursuant section two four of of this chapter, the fictitious fictitious hundred four two hundred pursuant to section acceptable 2 [* 2] 2 of 4 FILED: KINGS COUNTY CLERK 10/20/2023 04:14 PM NYSCEF DOC. NO. 16 INDEX NO. 504416/2023 RECEIVED NYSCEF: 10/20/2023 name which name this state, business in this name apply for authority authority and and do business state, which proposes to apply which it proposes under which name under be in compliance compliance with with section section two two hundred hundred four of of this this chapter chapter and shall shall be used used by the shall be the department with the foreign limited limited liability liability company company in all its dealings dealings with department of of state state and and in the foreign conduct of of its business business in this this state. state. Similarly, Similarly, while while Limited Limited Liability Liability Company Company Law Law 808(a) 808(a) conduct having without having this state business in this states that foreign limited limited liability liability company company doing doing business state without that a foreign states received a certificate certificate of of authority authority to do business business in this state state may may not not maintain maintain any action, action, suit, received until such special proceeding court of of this state unless and until such limited limited liability liability company company unless and this state proceeding in any court or special have received received a certificate certificate of of authority authority in this state, state, section section 808(b) 808(b) states states the the failure failure of of a shall have the with the this state business in this foreign limited limited liability liability company company that doing business state to comply comply with that is doing foreign provisions of of this this chapter chapter does does not not impair impair the validity validity of of any contract contract or act of of the foreign foreign provisions limited liability liability company company or prevent foreign limited limited liability liability company company from from defending defending any prevent the foreign limited action or special special proceeding proceeding in any court court of of this state. action business in Here, submitted its application application and certificate certificate of of authority authority to do business has submitted Plaintiff has Here, Plaintiff New York under under its fictitious fictitious name. name. However, However, the contract contract and the the caption caption of of this this action action use New York the issue While the Funding LLC. Plaintiffs LLC. While issue of of contracts contracts or Business Funding Pinnacle Business name, Pinnacle Maryland name, Plaintiffs Maryland transactions entered entered into into under under the real real and not not the the fictitious fictitious name name has not not generally generally been been transactions validity and the validity have addressed which have discussed in case case law, law, in the majority of cases cases which addressed the and majority of discussed enforceability of of contracts contracts and and transactions transactions entered entered into with with persons persons who who use a fictitious fictitious name name enforceability non-compliance does then non-compliance this fact, then party from this instead, if if no harm injury resulted other party does resulted to the other harm or injury instead, Doing Business Effect of defeat recovery recovery (see (see Annotation. Annotation. Construction Construction and and Effect of Statutes Stat utes as to Doing Business not defeat Persons Names of Showing the Names Not Showing of the Persons Designation Not Name or Designation Fictitious Name Assumed or Fictitious Under an Assumed Bogart Bell & Bogart Interested, AL.R. 198 [1926]; [1926]; Gay Gay v Seibold, Seibold, 97 N.Y.472 N.Y.472 [1884]; [1884]; Taylor Taylor v Bell Interested, 45 A.LR. A.D. 591 [1st Andrews, 203 AD. Soap Dept. 1897]; 1897]; Fawcett [1st Dept. Dept. 1922]; Fawcett v Andrews, A.D. 175 [2d Dept. Soap Co., 18 A.D. st Inc., 19 A.D.3d New York IPA, Inc.) Hoyt Hill 322 [1842]; [1842]; Cohe'} CoheY}v OrthoNet New AD.3d 261 [1 [15t v OrthoNet Allen, 2 Hill Hoyt v Allen, that Dept. 2005]). 2005]). Moreover, Moreover, Defendants' Defendants' motion supported only only by an attorney attorney affirmation affirmation that motion is supported Dept. raises allegations allegations against against Plaintiff Plaintiff in a conclusory conclusory fashion. fashion. The The bare bare affirmation affirmation of of an attorney attorney raises without evidentiary who demonstrates no personal of the the incident, incident, is without evidentiary value value and is knowledge of personal knowledge who demonstrates thus unavailing unavailing (Zuckerman (Zuckerman v. v. City City of of New NY2d 557 [1980]; [1980]; citing citing Columbia Columbia Ribbon Ribbon New York, 49 NY2d thus N.Y.2d 496 Carbon Mfg. Co. v A-I-A 496 [1977]). [1977]). A-1-A Corp., 42 N.Y.2d & Carbon Accordingly, it is hereby hereby Accordingly, 3 [* 3] 3 of 4 FILED: KINGS COUNTY CLERK 10/20/2023 04:14 PM NYSCEF DOC. NO. 16 INDEX NO. 504416/2023 RECEIVED NYSCEF: 10/20/2023 ORDERED, ORDERED, that that Defendants' Defendants' motion motion to dismiss dismiss the complaint complaint with with prejudice prejudice is denied, denied, further and it is further ORDERED, that that an Answer Answer shall shall be filed within within 30 days days of of notice notice of of entry entry of of this order, order, ORDERED, further and it is further This constitutes constitutes the the decision decision and order order of of the Court. Court. This Han. lngnd Ingrid Josepn Josepn Hon. Supreme Court Court Justice Supreme 4 [* 4] 4 of 4

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