Preview
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
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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
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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
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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.”).
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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
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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
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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
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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”.
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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
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“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
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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.
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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
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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
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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.
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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
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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
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________________________________________________________________________
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
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