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  • Emerald Group Holdings Llc D/B/A VITALCAP FUND v. Mark Levitt D/B/A SCOTT ELECTRIC, Mark Levitt D/B/A MARK LEVIT ELECTRIC, Mark Ross LevittCommercial - Contract document preview
  • Emerald Group Holdings Llc D/B/A VITALCAP FUND v. Mark Levitt D/B/A SCOTT ELECTRIC, Mark Levitt D/B/A MARK LEVIT ELECTRIC, Mark Ross LevittCommercial - Contract document preview
  • Emerald Group Holdings Llc D/B/A VITALCAP FUND v. Mark Levitt D/B/A SCOTT ELECTRIC, Mark Levitt D/B/A MARK LEVIT ELECTRIC, Mark Ross LevittCommercial - Contract document preview
  • Emerald Group Holdings Llc D/B/A VITALCAP FUND v. Mark Levitt D/B/A SCOTT ELECTRIC, Mark Levitt D/B/A MARK LEVIT ELECTRIC, Mark Ross LevittCommercial - Contract document preview
  • Emerald Group Holdings Llc D/B/A VITALCAP FUND v. Mark Levitt D/B/A SCOTT ELECTRIC, Mark Levitt D/B/A MARK LEVIT ELECTRIC, Mark Ross LevittCommercial - Contract document preview
  • Emerald Group Holdings Llc D/B/A VITALCAP FUND v. Mark Levitt D/B/A SCOTT ELECTRIC, Mark Levitt D/B/A MARK LEVIT ELECTRIC, Mark Ross LevittCommercial - Contract document preview
  • Emerald Group Holdings Llc D/B/A VITALCAP FUND v. Mark Levitt D/B/A SCOTT ELECTRIC, Mark Levitt D/B/A MARK LEVIT ELECTRIC, Mark Ross LevittCommercial - Contract document preview
  • Emerald Group Holdings Llc D/B/A VITALCAP FUND v. Mark Levitt D/B/A SCOTT ELECTRIC, Mark Levitt D/B/A MARK LEVIT ELECTRIC, Mark Ross LevittCommercial - Contract document preview
						
                                

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FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU EMERALD GROUP HOLDINGS LLC D/B/A Index No.: 611166/2023 VITALCAP FUND, Plaintiff, MEMORANDUM OF LAW IN vs. OPPOSITION TO PRE-ANSWER MOTION TO DISMISS MARK LEVITT D/B/A SCOTT ELECTRIC, MARK LEVITT D/B/A MARK LEVIT ELECTRIC AND MARK ROSS LEVITT, Defendants, Yosef C. Feldman, Esq. Lieberman and Klestzick, LLP Attorneys for Plaintiff 71 S Central Avenue Valley Stream NY 11580 P: 516-900-6720 Email: yosef@landklegal.com 1 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 TABLE OF CONTENTS PRELIMINARY STATEMENT...................................................................................................... 4 SERVICE WAS PROPER AS PER THE AGREEMENT .............................................................. 4 PLAINTIFF’S CAUSES OF ACTION ARE NOT DUPLICATIVE .............................................. 6 DEFENDANTS BREACH OF CONTRACT HAS BEEN DEMONSTRATED ........................... 8 THE TRANSACTION WAS NOT USURIOUS ACCORDING TO THE K9 BYTES STANDARD FOR CASH ADVANCES ...................................................................................... 10 i. AGREEMENT CONTAINED A MANDATORY RECONCILIATION PROVISION 11 ii. AGREEMENT HAS NO FINITE TERM ...................................................................... 12 i. NO RECOURSE TO PLAINTIFF IF DEFENDANTS FILE BANKRUPTCY ......... 13 THE DEFENDANT NOT PROVIDED A PROPER EXCUSE FOR AN EXTENTION FOR TIME TO FILE ......................................................................................................................................... 13 CONCLUSION .............................................................................................................................. 14 By: ________________________ ......................................................................................... 15 WORD COUNT CERTIFICATION ............................................................................................. 16 By: ________________________ ......................................................................................... 16 MEMORANDUM OF LAW IN OPPOSITION TO PRE-ANSWER MOTION TO DISMISS ... 17 TABLE OF AUTHORITIES Cases Bell Constructors v Evergreen Caissons, Inc., 236 A.D.2d 859, 860 (4th Dept 1997) ...........................................................................................................................8, 11 Brooke Group v JCH Syndicate 488, 87 NY2d 530 (1996) ....................................10 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14 (1985)...........................7 Georgia Malone & Co., Inc. v. Rieder, 19 NY3d 511 (2012) ...................................6 2 2 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 Goldman v. Metropolitan Life Ins. Co. 5 NY3d 561 (2005) ....................................... 6 IBIS Capital Group, LLC v Four Paws Orlando LLC, 2017 NY Slip Op 30477[U] (Sup Ct, Nassau County 2017). ............................................................................17 Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, (1982) ......................................................................................................................7 K9 Bytes, Inc. v Arch Capital Funding, LLC, 56 Misc 3d 807 (Sup Ct, Westchester County 2017). ................................................................................................ 15, 17 Miller v. Schloss, 218 NY 400 (1916) .......................................................................7 Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415 (1972)..........7 Shin-Etsu Chem. Co. v ICICI Bank Ltd., 9 AD3d 171 (1st Dept 2004). ................11 The Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972) ..................................8 Statutes CPLR § 327 (b) .......................................................................................................10 GOL § 5-1402 ..........................................................................................................10 N.Y. C.P.L.R. § 302 (McKinney 2006) .....................................................................8 3 3 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 PRELIMINARY STATEMENT The pre-answer motion before the Court is an obvious delay tactic. Defendants are gaming the extensions of time found in CPLR 3211(f) and CPLR 2004 in bad faith. Plaintiff’s contract and supporting documents, incorporated into its verified complaint, sufficiently provided Defendants with adequate notice of the occurrences upon which this lawsuit is based. For the purpose of pleading jurisdiction, both parties are domiciled in New York. The common law of this state lets parties stipulate to the service of process by mail, and common- sense rules of statutory construction proscribe applying the personal service statutes defendants hang their argument on, CPLR Sections 308, 312-a and 313, to the present case where the sufficiency of personal service is not an issue. Likewise, Defendants' arguments for duplication of claims are meritless and nearly identical to what this court found unpersuasive in Fox Capital Group, Inc. v. RPP Products Inc. et al. (Index No. 604875/2021) (S. Ct. Nassau Co., Jimenez, J.). SERVICE WAS PROPER AS PER THE AGREEMENT Parties are permitted to agree to an alternative method of service of process as long as the agreed upon method is reasonably calculated to provide actual notice of the legal proceeding. See Gilbert v. Burstine, 255 N.Y. 348, 355-356 (January 13, 1931) (“It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them.”). 4 4 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 Here, under the terms of their agreement, Defendants consented to service of process by First Class or Priority mail to the addresses provided to Plaintiff in the parties’ Agreement, a method reasonably calculated to provide actual notice of the legal proceeding. “Only a limited group of public policy interests has been identified as sufficiently fundamental to outweigh the public policy favoring freedom of contract”. Matter of New Brunswick Theol. Seminary v Van Dyke, 2020 NY Slip Op 03114 at 3 (2nd Dept., June 3, 2020). “The fact that a contract term may be contrary to a policy reflected in the Constitution, a statute or a judicial decision does not render it unenforceable”. Matter of New Brunswick Theol. Seminary v Van Dyke, 2020 NY Slip Op 03114 at 3 (2nd Dept., June 3, 2020). “Indeed, the courts of this State regularly uphold agreements waiving statutory or constitutional rights.” Matter of New Brunswick Theol. Seminary v Van Dyke, 2020 NY Slip Op 03114 at 3 (2nd Dept., June 3, 2020). Here, Defendants’ argument against service by mail requires the court to read the permissive language of BCL 307(a) “In any such case, process against such foreign corporation may be served upon the secretary of state as its agent” as mandatory, without any basis for asserting why. Subsection (b) clearly applies to those cases where a plaintiff chooses to serve the Secretary of State, a scenario not applicable to this action. The Agreement’s terms setting service by process mail are a naturally related to resolving conflict of law headaches arising in interstate commerce instead of magnifying them as Defendants’ reading of the terms would ensure. The statute Defendants cite is an example of why Service of Process Clauses are included in commercial contracts. Traditional methods for service of process on a foreign party are not designed for interstate commerce, where parties explicitly consenting to jurisdiction in a foreign forum. Service on the Secretary of State merely supplements as a permissive process to serving the secretary of state on an unregistered foreign corporation and offers no fundamental countervailing public policy to freedom of contract that is sufficient to outweigh favoring an 5 5 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 interpretation of the provision as promoting a reasonable alternative to serving the Secretary of State in order to commence litigation in the parties’ chosen forum. PLAINTIFF’S CAUSES OF ACTION ARE NOT DUPLICATIVE Defendants’ claim is that the Plaintiff’s causes of action for breach of contract and unjust enrichment are duplicative, and therefore Plaintiff’s claim for unjust enrichment should be dismissed. Here, all three of Plaintiff’s causes of action fit within a cognizable legal theory. Plaintiff has alleged that Company Defendant and Guarantors entered into a contract with Plaintiff, consideration was remitted, Defendants have breached the terms of the contract and guaranty, and Plaintiff is entitled to liquidated damages. Plaintiff has alternatively alleged that Defendants still should not be unjustly enriched absent a legally binding contract due to Plaintiff’s detrimental reliance on their representations. CPLR Sec. 3014 clearly states “Separate causes of action or defenses shall be separately stated and numbered and may be stated regardless of consistency. Causes of action or defenses may be stated alternatively or hypothetically.” CPLR Sec. 3017 (a) clearly states that “every complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a demand for the relief to which the pleader deems himself entitled. Relief in the alternative or of several different types may be demanded.” In Novac Entities v Coronam Auto Repair, this court upheld Plaintiff’s alternative causes of action for breach of contract and unjust enrichment. 1 Issue has not yet been joined and Defendants may still call the enforceability of the contract into doubt with their anticipated defenses. The Court must reserve its judgment as to whether the Plaintiff’s claims are duplicative until the time it decides enforceability on a motion for summary judgment. Once the Court finds 1 See attached Exhibit Novac Entities v Coronam Auto Repair 6 6 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 the Agreement enforceable, it may then safely dismiss Plaintiff’s unjust enrichment claim as duplicative. “On a motion to dismiss pursuant to CPLR 3211 (a)(7), the pleading must be afforded a liberal construction and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The essential elements for pleading a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach" (Dee v Rakower, 112 AD3d 204, 208-209, 976 N.Y.S.2d 470 [2d Dept 2013]). The theory of unjust enrichment lies as a quasi-contract claim.” Goldman v. Metropolitan Life Ins. Co. 5 NY3d 561, 572 (2005). “It is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned.” IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132 (2009). “An unjust enrichment claim is rooted in the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another.” Georgia Malone & Co., Inc. v. Rieder, 19 NY3d. 511 (2012) quoting Miller v. Schloss, 218 NY 400 (1916). A cause of action for unjust enrichment will lie, where: the defendant was enriched, the enrichment was at the expense of the Plaintiff, and it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415 (1972), cert. denied, 414 U.S. 829, 94 S.Ct. 57 (1973). The Plaintiff’s Exhibits attached to its complaint demonstrates that the Plaintiff advanced Company Defendant a sum of money in exchange for a future interest in its receivables, that was secured by and reduced by an interest in its present receipts. Company Defendant’s failure to tender to the Plaintiff its portion of the daily receipts, resulted in a continuing unlawful 7 7 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 conversion of the Plaintiff’s security interest at the Plaintiff’s expense. It would be against equity and good conscience to permit the defendant to retain the value of the withheld Receipts. DEFENDANTS BREACH OF CONTRACT HAS BEEN DEMONSTRATED There are four elements to establish a cause of action for a breach of contract. The elements to proof a breach of contract are: (1) formation of a contract between plaintiff and defendant, (2) performance by plaintiff, (3) defendant's failure to perform, (4) resulting damage. [ Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804 (2011). The Agreement in the pertinent part states: “The Receivables Purchased Amount shall be paid to VITALCAP by each Merchant irrevocably authorizing only one depositing account acceptable to VITALCAP (the "Account") to remit the percentage specified above (the "Specified Percentage") of each Merchant's settlement amounts due from each transaction, until such time as VITALCAP receives payment in full of the Receivables Purchased Amount.” 2 As clearly shown in the agreement, Merchant is responsible for the daily remittance of the Purchased Receivables. Furthermore, it is Merchant's responsibility to request a reconciliation if the daily receivables go above or below the good faith approximation. It is a condition precedent that Defendant must show their receivables in order to affect a reconciliation and Defendant has failed to do so. Furthermore, Defendant in their opposition papers have not provided any proof of any downturn or stoppage of receivables. Plaintiff’s proof of Defendant’s breach is the Agreement 3, the funding confirmation 4 and the pay run 5. As Defendant failed to 2 See NYSCEF doc no 2, page 2, paragraph 1. 3 See NYSCEF doc no 2. 4 See NYSCEF doc no 3, ‘Funding Confirmation’. 5 See NYSCEF doc no 4. “Pay run”. 8 8 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 keep their end of the Agreement by stopping all payments without requesting a reconciliation, Defendant is in breach of the Agreement. The complaint is sufficiently pleaded as it must "set forth the terms of the agreement upon which liability is predicated, either by express reference or by attaching a copy of the contract" Chrysler Capital Corp. v Hilltop Egg Farms, 129 AD2d 927, 928. In the instant matter, Plaintiff attached the Agreement as an exhibit with the Summons and Complaint. 6 The complaint alleges that Plaintiff paid Company Defendant for the future receivables, Company Defendant initially made payments, but “Company Defendants, however, stopped remitting the purchased receivables to Plaintiff from the Bank Account, and failed to provide Plaintiffs proper financial disclosures or a written request for reconciliation, thereby breaching the agreement.” 7 The Agreement states “(5) Any Merchant causes any ACH debit to the Account by VITALCAP to be blocked or stopped without providing any advance written notice to VITALCAP, which notice may be given by e-mail to info@vitalcapfund.com;” 8 Exhibit C, the payrun, attached to the complaint, indicates that Defendants failed to continue making payments as evidenced by the ‘ACH Status’ on the right side of the Pay Run. 9 As to the Guaranty, the Complaint alleges that the under the Agreement between the parties Guarantor guaranteed performance if Company Defendant breached and has failed to perform in lieu of Company Defendant’s breach, thereby causing damage to Plaintiff for a sum certain. 10 Specifically, the Guaranty states on page 12 of the Agreement: 6 See NYSCEF doc no 2, “Agreement”. 7 See NYSCEF Document number 1, Complaint page 4 paragraph 9. 8 See NYSCEF doc 2, “Exhibit A” Agreement, page 7, section 32 “Events of Default”. 9 See NYSCEF doc no 4, “Pay Run”. 10 See the Complaint page 4 and 5, NYSCEF Document number 1. 9 9 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 “Each undersigned Guarantor hereby guarantees each Merchant's performance of all of the representations, warranties, and covenants made by each Merchant to VITALCAP in the Agreement, inclusive of all addenda, if any, executed simultaneously herewith, as the Agreement may be renewed, amended, extended, or otherwise modified (the "Guaranteed Obligations").” 11 Therefore, the complaint should not be dismissed because Plaintiff has satisfied its obligation for specificity in both having attached the contract to its complaint and by having specified that Defendants’ failure to remit the Purchased Percentage and closure of the Bank Account without proper notice to Plaintiff was the cause of the Defendants breach. THE TRANSACTION WAS NOT USURIOUS ACCORDING TO THE K9 BYTES STANDARD FOR CASH ADVANCES The type of transaction at issue is a cash advance, and the Court has consistently ruled on the validity of this specific type of agreement in the context of the usury laws. Courts have repeatedly held that agreements similar to the case at bar to be one of a purchase and sale; and not of a loan. 12 According to Funding Group Inc. v Water Chef, Inc., 19 Misc. 3d 483, “If the transaction is not a loan, there can be usury, however unconscionable the contract may be.” Transmedia Rest. Co. v 33 E. 61st St Rest. Corp, 184 Misc. 2d. at 711 “there can be no usury unless the principal sum advanced is repayable absolutely” and Professional Merchant Advance Capital, LLC v Your Trading Room, LLC. In this type of agreement, the issue before the Court in determining whether the Agreement is usurious is not what the percentage differential is between the Purchase Price and the Receivables Purchased Amount, but whether repayment was absolute. 11 See NYSCEF doc no 2, “Agreement” page 12 , paragraph G1. 12 K9 Bytes Inc., et al. v. Arch Capital Funding, LLC, et al., Index No. 54755/2016 (Sup. Ct. Westchester Co. 5/8/17). 10 10 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 In determining whether a transaction is a loan, the court must examine whether or not Defendant is absolutely entitled to repayment under all circumstances. 13 Certain factors are reviewed to ascertain if repayment is absolute or contingent. “Usually, courts weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy. 14 i. AGREEMENT CONTAINED A MANDATORY RECONCILIATION PROVISION The Court has already held that a transaction would not constitute a loan when "(t)he agreement provided a reconciliation on demand provision whereby the parties permitted to demand the monthly reconciliation of funds from the other to ensure that neither entity collected more or less of the sales proceeds than they were contractually entitled to collect from the designated bank account”. 15 In the case at bar, the Agreement signed by the parties has a mandatory reconciliation obligation on Plaintiff to reduce the payments upon a reduction in revenue which could be utilized by Company Defendants at any time. The Agreement states on page three: “Any Merchant may request that VITALCAP conduct a reconciliation in order to ensure that the amount that VITALCAP has collected equals the Specified Percentage of Merchant(s)'s Receivables under this Agreement…VITALCAP will complete each reconciliation requested by any Merchant within two business days after receipt of proper notice of a request for one accompanied by the information and documents required for it.” 16(emphasis added) 13 K9 Bytes, Inc. v Arch Capital Funding, LLC, 57 N.Y.S.3d 625 (Sup Ct., Westchester County 2017). 14 Id. 15 Retail Capital, LLC v Spice Intentions Inc., 2016 NY Slip Op 32614[U] (Sup Ct., Queens County 2016). 16 See NYSCEF doc no. 2, “Agreement”, page 3, section 1.4. 11 11 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 As is self-evident from the language of the Agreement, upon a reconciliation request by Defendant, Plaintiff was required to provide a reconciliation. There is a mandatory reconciliation provision in the Agreement which allowed Defendants to request a reduction in the daily remittance had Defendant’s receivables been reduced. Defendants have not requested a reconciliation, remitted financial statements to Plaintiff or requested a reduction. The fact of the matter is that the evidence shows they made no attempt to comply with their obligations in the Agreement’s reconciliation provisions, as explained in the next section. ii. AGREEMENT HAS NO FINITE TERM In addition, to determine if a transaction is a loan, the Court will review the Agreement to 17 ascertain if the Agreement has a finite term or not. Here, the Agreement has no end date or sunset provision but relies solely on the Defendants receivables, as such, the term “interest rate” has no application here. Rather, the Agreement solely relies on the Defendants receivables. Defendants cannot argue that the terms of repayment are not based upon their receipts because they possessed a contractual right to demand a reconciliation according to their receipts. If Defendants wanted their receipts to be adjusted on a daily basis, the contract allowed for them to demand this from Plaintiff by providing documentation on a daily basis. Defendants chose not to do this. 17 IBIS Capital Group, LLC v Four Paws Orlando LLC, 2017 NY Slip Op 30477[U] (Sup. Ct., Nassau County 2017). 12 12 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 i. NO RECOURSE TO PLAINTIFF IF DEFENDANTS FILE BANKRUPTCY The final factor in the usury analysis is “whether the defendant has any recourse should the merchant declare bankruptcy”. K9 Bytes, Inc. v Arch Capital Funding, LLC, 56 Misc. 3d 807 (Sup Ct., Westchester County 2017). Here, because the Agreement states that: “VITALCAP is entering into this Agreement knowing the risks that each Merchant's business may decline or fail, resulting in VITALCAP not receiving the Receivables Purchased Amount. Any Merchant going bankrupt or going out of business or experiencing a slowdown in business or a delay in collecting Receivables will not on its own without anything more be considered a breach of this Agreement.” 18 The Agreement is crystal clear that bankruptcy would not be deemed a default, that the merchant would be entitled to liquidate its assets and that Plaintiff would not have any recourse. The Agreement, it clearly states that a filing of bankruptcy would not constitute a breach and as such Plaintiff would not be able to bring an action against any of the Defendants. Defendants have not requested a reconciliation, remitted financial statements to Plaintiff or requested a reduction in payments. Rather Defendants are attempting to post facto change the Agreement between the parties to a loan when it was a clear purchase of receivables. The Agreement in this case therefore satisfies all of the factors laid out in K9 Bytes for a cash advance to not be deemed usurious as a matter of law. THE DEFENDANT NOT PROVIDED A PROPER EXCUSE FOR AN EXTENTION FOR TIME TO FILE CPLR 3012(d) allows a party to request an extension of time to appear or plead upon a showing of a reasonable excuse for delay or fault. CPLR 2004 allows the court to extend the fixed time 18 See NYSCEF document number 2, page 1 paragraph 2. 13 13 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 upon a showing of good cause. A showing is required to extend time. Defendant has failed to offer any excuse for delay or fault. Defendant has also not bothered to offer any showing of good cause. This is part of the countless pre-answer motions filed by the defense bar that is only designed to extend recourse to the Plaintiff.19 As in Propella Capital, the only objective here is a delaying tactic as Defendants motion is based on meritless delaying assertions. CONCLUSION Finally, the Defendants also represent in the Agreement that it had the opportunity to review the documents with an attorney. 20 For all the foregoing reasons, the Defendants’ pre- answer motion to dismiss should be denied. The Court should immediately find 1) the parties entered into valid forum selection and choice of law clauses; 2) that as a matter of law the documentary evidence supports the Plaintiff’s allegation that the agreement was for the purchase of contingent Receipts; 3) and that the Defendants be ordered to enter a response to Plaintiff’s complaint within 10 days of entry of the order as there is no good cause for an extension to 30 days pursuant to CPLR 2004. For purposes of this application only, the Plaintiff’s attorney hereby waives its entitlement to attorney’s fees and retains the right to renew the application for attorney fees for future applications to the Court. 19 Propella Captial LLC v K&J Construction et al. (Index No. 152658/2022) (S. Ct. N.Y. Co.) 20 NYSCEF Doc. No. 2, page 6, paragraph 5.6. 14 14 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 Dated: Respectfully submitted, Nassau County, New York October 16, 2023 By: ________________________ Yosef C. Feldman, Esq. Lieberman and Klestzick, LLP Attorneys for Plaintiff 71 S Central Avenue Valley Stream NY 11580 P: 516-900-6720 Email: yosef@landklegal.com 15 15 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 WORD COUNT CERTIFICATION I hereby certify pursuant to part 202.8-b of the Uniform Civil Rules for the Supreme Court & the County Court that this document according to the word count tool on Microsoft Word, the total number of words in this document is 3248, consistent with the rule that (i) affidavits, affirmations, briefs and memoranda of law in chief be limited to 7,000 words each; (ii) reply affidavits, affirmations, and memoranda be no more than 4,200 words, and do not contain any arguments that do not respond or relate to those made in the memoranda in chief. Dated: October 16, 2023 Respectfully submitted, Nassau County, New York By: ________________________ Yosef C. Feldman, Esq. Lieberman and Klestzick, LLP Attorneys for Plaintiff 71 S Central Avenue Valley Stream NY 11580 P: 516-900-6720 Email: yosef@landklegal.com 16 16 of 17 FILED: NASSAU COUNTY CLERK 10/16/2023 02:29 PM INDEX NO. 611166/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/16/2023 ________________________________________________________________________ Index No. 611166/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU EMERALD GROUP HOLDINGS LLC D/B/A VITALCAP FUND, Plaintiff, -against- MARK LEVITT D/B/A SCOTT ELECTRIC, MARK LEVITT D/B/A MARK LEVIT ELECTRIC AND MARK ROSS LEVITT, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO PRE-ANSWER MOTION TO DISMISS LIEBERMAN AND KLESTZICK, LLP 71 S. Central Avenue, Second Floor Valley Stream, New York 11580 Mail To: PO Box 356 Cedarhurst, New York 11516 PHONE: (516) 900-6720 17 17 of 17