Bizfund LLC v. Ocean Auto Group LLC

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Bizfund LLC v Ocean Auto Group LLC 2024 NY Slip Op 33183(U) September 10, 2024 Supreme Court, Kings County Docket Number: Index No. 507107/2022 Judge: Peter P. Sweeney 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 09/11/2024 03:03 PM INDEX NO. 506368/2024 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2024

SUPREME COURT OF THE STATE OF NEW YORK In:dex No.: 507107 /2022 COUNTY OF KINGS, PART 73 Motion Date: 9-9-24 -------------·. ------------· ------------------ .. --·. ----- ·--- ·. - ·-X. Mot. Seq. No.: 5, 6 BIZFUNDLLC;

Plaintiff, -against- DECISION/ORDER

OCEAN AUTO GROUPLLC DBA MIDAS TIRE & AUTO NELLIS; and AUTOMOTIVE \VORKERS ASSOCIATION OF NEVADALLC; and OCEANBOS ENTERPRISES LLC; and OCEAN AUTOMOTIVE LLC; and BRAKE CITY LLC; mid RA.NBIR SINGH SIDHU,

D efertdants, ----· ---- .-- ·-------- ·------ ·----- ·-· ---------- ·----· -.· --- ·-. ----x The following papers. which arc e-filed with NYCEF as items 64-75; \Vere read on this 1notiori and cross-motion:

In thisacfion for the breach of a contract for the purchase and sale offuture receivables, in motion sequence no. 5, the plaintiff moves for an order: (a) granting leave forreargumcnt of the Court's Decision and Order dated January 29, 2024, on the basis that the Cou1t inadvertently overlooked a material factto which Defendants stipulated, i.e .. the Defendants' express v.rritten admission, via stipulaticm, that they continued to generate and coUectreceivables· after the date that they ceased rernitting teceivabLes, and, upon rearguni.ent, gra1i.ting Plaintiffs Moticm for Summary J udgmerit, and {b)granting Plaintiff snch Other ,and further relief as the Court dee1i.1s just and proper. In motion sequence no. 6. the defendants cross~move for an order dismissing the action for lack of subject matterjurisdiction unless plaintiff proves that the bank from which it wircdthc funding to defendants v-.·asin New York (Kapitus Servicing, Inc, v Poi11t Blank Constr., lnc.,221 AJ).Jd 532 [2023]). The two motions are consolidated for disposition.

Mution Sequence No. 5.

Plaintiffs h1otion to reargue is denied. In denying plaiiniffs motion for sumni.ary judgment,. the tourt he Id that the anidavi t plain ti ff !:I ubmitted 111 support of the motion was vague as to how the defendant breached ·the contract Throu gbout the affidavit. the plaintiff re peated!y said that the d efe1i.da1its. breached. the agreemei1t wi tbout specify irtg the riaturc of the breac li. Notably, pan;graph 7:¹ of the agreement be-tweeri. the parties specifies ai11)iriad ofreas<.)ns Why

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FILED: KINGS COUNTY CLERK 09/11/2024 03:03 PM INDEX NO. 506368/2024 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 09/11/2024

where that final act is done" (citing Fremay. Inc. v. Mudern Plastic J\1ach. Corp .. 15 A.D.2d 235 , 237,222 N.Y.S.2d 694). The CoUli went on to hold that the contract between the parties was made in New York since the last act necessary to the formulation of the contract was performed in New Y erk, that act being when plaintiff wired the funds representing the purchase price for the future receivables from its office in ew Yark to a Florida bank account (Kapitus Servicing. Inc. , supra.).

In support of its argument that the contract between the parties in this case was made in ew York, plaintiff relies on the affidavit of David Wolfson, the Vice President of Risk Management and Asset Recovery of Kapitus Servicing, Inc. f/k/a Colonial Funding etwork, Inc. as servicer and agent for FIG Capital LLC. He states in his affidavit:

Plaintiff funded Defendants directly using its bank accounts controlled by New York employees who released the funds to Defendants.

In the Court's view, Mr. Wolfson ' s affidavit does not demonstrate as a matter of law that the last act necessary to the formulation of the contract between the parties was performed in New York. In the Court's view, until there is full discovery on the issue of how the funds were sent to the defendant, the court is not able to determine whether the court has subject matter jurisdiction over the action.

Accordingly, it is hereby

·. ') ORDERED that the motion and cross-motion are DENIED . . ... . . :, , 1 -~ :

This constitutes the decision and order of the Court. ~ .-,

'·' I Dated: September 10, 2024 ' 'j

PETER P. SWEENEY, J.S.C. ote: This signature was generated electronically pursuant to Administrative Order 86/20 dated April 20, 2020

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Footnotes

[1] of 4 [* 1] the defendant would be considered ill default of the <1grecn1cnt. The plaintiff did not spetii)' any Mthese grottn:ds as the basis of the bn:ach, hi seeking leave to reargue, a movant must sho\.v thatthe cotlrt that issued the {ltigihal order either "overlooked or m isappn~hend ed._,· relevant facts or -1n isapplied cmitro11 ing principles of law (TVilllam. P: Pahl Equip. Corp. v. Ku.1·sL\·; J 82A.D.2d 22, 2 7, appeal denied in par/ ctnd dismissedinpart, 80 N. Y.2d 1005, quoting Schneider v. Sofo11'<!J\ 141 A.D.2d 813; CPLR 2221(d}(2); Boboyev v. Gomez, J04 A.D.2d 600 (2d Depf2003); Delgrosso v, 1325 Lrd P'ship.

[3] 06 A,D .2d 241 ). If the movant has not made such a showing; the motion to reargue mnst be denied (see Calo v. Wal-Mart StQres. Inc., 305 A.D.2d 351 ). "Reargurhent is not designed to afford the unsuccessful pai1y successive opp011unities to re argue issues previously decided_ or to present arguments different from those originally asserted:· ( William P. Pahl Equip. Com .. 182 A.D:2d at 27: see also Pro Broke1·age. hie. v: Home Inf Co;. 99 A.D.2d 971, i1ppettl dismissed,

[64] N. Y .2d 646). Since the plaintiff failed to demonstrate that this Court ovedociked 01· misapprehended ·any relevant facts ormisappJied controlling principles of law, the motion-is denied. Motion Sequence No. 6. The defendants' move to dismiss the actior:Lclaiming that pursuant to Business Corporation Law § 1314(b), this couit lacks subject matter jutisdictioli over the action. Defendants motion is denied for the following rea::.ons: Business Corporation Law § 1314(b) provides: Except as otherwise provided in this m1icle, an action or special proceeding against -a foreign corporation n1ay be maintained by another foreign corporation of any type or kind or by a non- - resident inthefollm,ving cases oi1ly: (!) Wlwre it is brought to recover damages for the breach of a eon tract rhade or to. be perfotnted within this state. or re,lati11g to property situated within this sta:te. at the time of the making of the cortti·act. .Defenqants cmTectly co11tend that.in Teqhnq-11\1. LLC v Fir~away, Inc. 1 123 A.D.3d 61 O, the. Appellate bi vision; First Department heid that forei~n corporations and foreign linttied liability co Ill pf!.nies are treated the same under Business C otporation La\V § 13 14 ( b}. The Court _2 2 of 4 [* 2] in Techno-T1\f, LLC dismissed a11 action brottght by a foreign limited liability c01t1pany against a foreign corporation stating: "The parties are. foreign corporations that neither do nor arc authorized to do business in New York (see CPLR 302), and this case does not fall under any of the exceptions permitting au action in this State by a foreign corporation against another foreign corporation (see Business Corporation Law [BCLj § 1314[b)'' (Techo-TA!. LLC:, supra.) While plaintiff cites a plethora of cases where lower cmni:s have held that Business Corporation Law § 1314[6J does not apply to foreign limited liability 1, the Comi: will not assume thatTechhoc..TAf. LLC was erroneous decided. Since the neither the Court of Appeals nor a11y othet departri1e11t of the Appellate Division has addressed the issue ofwhcther a foreign limited liability company should be treated like a foreign corporation ilnder Business Corpo!'ation Law § 13J 4[b]; the Court must follov,/ Tecl1110~ TM. LLC (Mmmtain Vie1r Coach Lilies 1'. Storm:1·; l 02 A.D.2d 663,664, 476N.Y.S.2d 918). Citing Kapitus Servicing, Inc: r; Point Blank Cons tr., Inc:., 221 A.D.Jd 532. 202 N. Y.SJd 1, the plaintiff contends that ifthe Court is inclined to apply Techno-T,\f. LLC the action should still be dismissed for lack of subject 111.atter jurisdiction because the action falls under Business Corporation Law§ 1314[b][l ], ari exception to the.general rule set forth in Business Corporation Law§ l314[b]). Under Business Corporation Law§ 1Jl4[b][1_], if an action is "brought to 1'ecover damages for the breach ofa contract made ... v-.'ithin this state'', the Cnmt\.v'ould have subject matter jurisdiction over the parties even ff the plaintiff is a foreign limited liable company or a foreign corporation (Business CorporationCa"v § 1314[b][l]). InKapitus Servh.dng; Jue,. supra. _a case which also involves an alleged breach of a contract for the sale of future receivables, the Court stated that ''the place· of making of [aJ contract is established when the last act necessary for its fomtula.tion is done, a.rid at the place 1 Se~ Pinnaclf Bus. r"imding, LLC v Mi1hcrrib, 2023 NY Slip Op .33 68Q[U] (Sup Ct, Kings County 2Q23 ); Pearl Delta Funding, LLC v. Quality .Auto ofAnderspn, LLC\ No.. 716193/2022, 2022 · N:Y. Misc. LEXJS 1:so35 (Sup. Ct. Dec; 6, 2022); Fo1\1 Fin. Asset .~eciwitization 2021, LLC v. Hialeah FL P ai'fs Inc, i 2024 NY Slip Op 315 O3(U) (Sup. Ct .., Apri i 3 t 2 024): Libertcl.s· Fundi rig, LlC v. Tr ave llmnl R T Inc. , 2024 NYLJ LEXIS 42 5 (Sup. Ct. Kings Cntr, Fe btuary 6, 2 024); 1", Capybara Capital, LLC·v. Dixie Home So/8., li1c. 1 2024N.Y .. Misc. LHXIS 1010). 3 3 of 4 [* 3]