DMKA LLC v. Guerrero

DMKA LLC v Guerrero 2024 NY Slip Op 33559(U) October 7, 2024 Supreme Court, Kings County Docket Number: Index No. 524910/2023 Judge: Richard Velasquez 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 10/07/2024 02:28 PM INDEX NO. 524910/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/07/2024

At an lAS IAS Term, Part 66 of Term, Part the Supreme. ofthe Supreme Court Court of the State of the State of New York, of New York, held held in and for the and the County County of of Kings, Kings, at the Courthouse, at 360 Courthouse, 360 Adams Adams Street, Street, Brooklyn, New Brooklyn, New York, the 7thth day of York, on the of October, 2024 October, 2024 PRES PRE SEN ENT: T: HON. RICHAR RICHARDD VELASQUEZ VELASQ UEZ . Ju?tice. Justice. . I ----------- ----------- ----------- ----------- --------------------------~------X ----------------------------------------~-------~---------------------~------)( I

DMKA DMKA LLC D/B/A D/B/A THETHE SMARTE SMARTERR MERCH MERCHANT, ANT,

Plaintiff, Plaintiff, Index Index No.: 524910/ 524910/2023 2023 -against- -against- Decision Decision and Order Order Mot. Seq. No. No.¹'1 ' ROGELI ROGELIO O GUERR ERO D/B/A GUERRERO D/B/A ADVANCED ADVANCED PERFOR MANCE AUTOMOTIVE PERFORMANCE AUTOMOTIVE CENTER CENTER D/8/A D/B/A ADVANC ADVANCEDED PERFOR MANCE AUTOMOTIVE PERFORMANCE AUTOMOTIVE CENT CENT D/B/A APAC D/B/A APAC D/8/A APAC AUTOMOTIVE D/B/A APAC AUTOMOTIVE D/B/A D/B/A ADVANCED PERFOR ADVANCED MANCE AUTO PERFORMANCE AUTO CENTE CENTERet al." Ret al.,,

Defenda nts, Defendants, ----------- -------------------------------------------- ----------------------X ------------------------------------------------------------------------------)(

The The following following papers papers NYSCEF NYSCEF Doc #'s 11 #'s 11 to 17 read on this this motion: motion: Papers Papers I NYSCEF DOC NYSCEF DOC NO. 's Notice Notice of Motion/O Motion/Orderrder to Show Show Cause Cause Affidavits (Affirmat Affidavits ions) Annexed (Affirmations) Annexed _ _ _ _ _ _ _ __ _ 11-15 Opposin Opposingg Affidavit Affidavitss (Affirmat ions) _ _ _ _ _ _ _ __ (Affirmations) _ 16-17 16-17 Reply Affidavits_ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ Reply Affidavits

,\ After After having come before having come the Court before the Court and the court court having having heard heard oral argument t on oral argumen on June June 12, 12, 2024 2024 and upon upon a review review of of the forgoing forgoing the court court finds finds as follows: follows:

Defenda nts move Defendants move pursuan pursuant t to CPLR CPLR §3211 93211 (a)(7), (a)(7), and (a)(8) (a)(8) for for an order" order•' i , I ii ii dismissin dismissingg the complaint, or extension the complaint, extension of of time time to answer (MS#1).). Plaintiff answer (MS#1 Plaintiff opposes opposes the the same. same.

In In consider ing a motiontt considering motiondoo dismiss dismiss a complain complaint t pursuan pur~uantt to CPLR CPLR 3211 (a) (a) (7), (7),.the the l ; .

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------------_ .....•..._------------------------...;;::~- INDEX NO. 524910/2023 ..• FILED: KINGS COUNTY CLERK 10/07/2024 02:28 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/07/2024

FILED: KINGS COUNTY CLERK 10/07/2024 02:28 PM INDEX NO. 524910/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/07/2024

FILED: KINGS COUNTY CLERK 10/07/2024 02:28 PM INDEX NO. 524910/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/07/2024

Footnotes

[1] of 4 [* 1] court court must must accep acceptt the the facts facts as alleged alleged in the compl complaint, aint as true, accord the true,· accord the plaintif plaintifff the the benefi benefitt of of every every possib le favora possible ble inferen favorable ce, and determ inference, determine only wheth ine only whether the facts facts as as / / er the alleged alleged fit within any fitwithin any cogniz able legal cognizable legal theory theory (see Leonv Leonv Martin Martinez, NY2d83, ez, 84 NY2d 88 [1994] [1994];; 83, 88 Meyer Meyer vv North North Shore -Long Is. Shore-Long _Jewish Health Is..Jewish Health Sys., Inc., 137 AD 3d 880, 880-88 AD3d 880-8811 [2d [2d Dept Dept 2016]; 2016]; Cecal Cecal vv Leade Leader,r, 74 AD3d AD3d 1180, 1181 [2d Dept Dept 2010]). "The criteri 2010]). "The criterionon is is whether wheth er the the propo nent of proponent of the the pleadi ng has pleading has a cause cause of of action, not wheth action, not whetherer he he has has stated stated one" one" (Gugg enheimer v. (Guggenheimer v. Ginzbu rg, 43 NY2d 268, 275, 401 NYS2d Ginzburg, NYS2d 182, 182, 372

[372] NE2d NE2d 17; 17; Rove/l Rovelloo v. v. Orofin Orofinoo Realty Realty Co., 40 NY2d at 636, 389 NYS2d 636,389 NYS2d 314, 357 NE2d NE2d 970). 970). "[B]ar "[Blare e legal legal conclu sions and conclusions and factua factual l claims which are claims which are flatly contradicted flatly contra by the dicted by the evidence evidence are are not not presu med to presumed to be be true on such true on such a motio motion"n" (Palaz (Palazzolo v. Herrick zolo v. Herrick,, Feinste Feinstein, LLP, in, LLP, · 298 298 AD2d AD2d 372, 372, 751

[751] NYS2d NYS2d 401). 401). If the docum documentary proof dispro entary proof disproves ves an an essential essential allegat ion of allegation of the the compla int, dismis complaint, sal pursua dismissal nt to CPLR pursuant CPLR 3211 (a)(7) (a)(7) is is warran warranted even if if ted even the the allegat ions, standin allegations, standingg alone, alone, could could withsta nd a motion withstand motion to dismis dismisss for failure to for failure to state state a a cause cause of of action action (see (see McGui re v. McGuire v. Sterlin Sterlingg Double Doubleday Enters.,., LP, 19 AD3d day Enters 660, 661, AD3d 660, 799 661, 799 NYS2d NYS2d 65). In In the the presen presentt case, case, affordi ng the compla affording int a liberal complaint liberal constr construction, accepting uction, accept the ing the facts facts as as alleged alleged therein therein as true, and grantin grantingg plaintif plaintiffs benefitt of fs the benefi of every every possib possible le inference, itit is inference, is _the the opinio opinionn of of this Court Court that that the compl complaint sufficiently aint sufficie states causes ntly states causes of of action. Although facts action. Although facts sufficie nt to justify sufficient justify oppos opposition may exist, ition may exist, they they curren currently reside tly reside almost almost exclus ively within exclusively within the knowle dge of knowledge of the officer officerss or emplo employees of defendant yees of defendant (see (see CPLR CPLR 3211[d 3211[d]] ). ). See See also also lomma rini v. lommarini v. Mortg. Elec. Regist Registration Sys., Inc., ration Sys., Inc., 54 54 Misc. Misc. 3d 3d 1225(A 1225(A)) (N.Y. Sup. Ct. 2017). 2017). When When a a party, party, usually usually the defend ant, moves defendant, moves for a motion motion to dismis dismiss, s, itit is is asking asking Page Page 20f4 2 of 4 2 of 4 [* 2] the court court to make that determination make that determination instead. instead. "Courts "Courts are not infallible. infallible. In undertaking undertaking such a task, a court should be mindful court should mindful to prevent prevent errors errors which which could could result result in the dismissal dismissal of a worthy worthy claim, claim, even even if it means means risking risking an unworthy unworthy claim claim proceeding proceeding to trial. In other other words, words, it must side of the plaintiff. must err on the side Toward this plaintiff. Toward this aim, many many rules rules and standards standards have evolved evolved for for the court court to follow." Poolt v. follow." Poolt v. Brooks, Brooks, 38 Misc. 3d 1216(A), 1216(A), 967 N.Y.S.2d N.Y.S.2d

[869] (Sup. Ct. 2013) 2013) In the case case at bar, Plaintiffs verified complaint Plaintiffs verified complaint constitutes constitutes evidence. evidence. How How credible credible that evidence that evidence is irrelevant irrelevant at this juncture. juncture. Plaintiff Plaintiff must must still make make out a prima prima facie facie case case against against them them at trial through through competent competent evidence, evidence, but when when it comes comes to "he said, she said," merely merely raises question of credibility raises a question credibility for the jury jury to decide decide (see (see Communications Communications & Entertainment Entertainment Corp. v. Hibbard Brown v. Hibbard Brown & Co., Inc., supra, 202 A.D.2d A.D.2d 191, 608 NYS2d NYS2'd 214). As such, such, the the plaintiffs plaintiffs have have plead facts sufficient plead facts for all causes sufficient to for of action causes of action and defendant defendant has failed failed to submit submit any documentary documentary evidence the contrary. evidence to the such, it is contrary. As such, inappropriate dismiss such inappropriate to dismiss such claims claims at this early juncture as this early juncture this is a pre-answer pre-answer motion motion to dismiss. dismiss. In addition, addition, defendant's defendant's personal jurisdiction arguments personal jurisdiction arguments are without without merit merit as the agreement agreement itself itself contains contains a jurisdiction jurisdiction clause clause stating stating that that the the defendants defendants agree agree to personal personal jurisdiction service of the complaint jurisdiction by service complaint by certified certified mail. Plaintiff Plaintiff has submitted submitted proof proof of the certified certified mailing mailing to the addresses addresses contained contained and agreed agreed to in the the contract. contract. The Appellate Appellate Division, Division, Second Second Department Department has held that service of that service of process process by mail mail as terms of per the terms of a written written agreement agreement is sufficient sufficient and reasonably reasonably calculated calculated to apprise apprise a defendant of defendant of the the pendency pendency of of a lawsuit. lawsuit. See Matter Matter of of New New York York Merchants Merchants Protective Protective Co., Inc., v. v. Mirna's Mima's Kitchen, Kitchen, Inc., 114 AD3d AD 3d 796 796 (2d Dep't Dep't 2014); 2014); see see also, Matter Matter of of Page Page 3 of of 4 3 of 4 [* 3] Fernandez Fernandez (Universal (Universal Underwriters Underwriters Ins.) Co., 130 AD 2d 657 657 (2d Dep't Dep't 1987). 1987). Accordingly, Accordingly, defendants' defendants' motion motion to dismiss dismiss is hereby hereby denied denied for for the the reasons reasons stated stated above. above. Defendants Defendants have have 30 days days from from the date date of of this this order order to file file and answer. answer. (MS#1 (MS#1).). This This constitutes constitutes the the Decision/Order Decision/Order of the court. Dated: Brooklyn, Brooklyn, New New York York IiI/ October 7, 2024 October 2024 (liTER F~RJrWITH: ~fER F~R,r.WITH: . ftv) ffl HON. Vi\ HON. RICHARD·.o/ELASQUEZ RICHARD.\.CLASQUEZ Hon. Richei'd velasq~,·JSC Hon. Richard vetesql ; JSC \ OCT D7 2024 DCT 072024 ~ Page Page 4 of 4 4 of 4 [* 4]