Motion to Dismiss in Byzfunder Ny Llc v. Go Freight Holdings, Inc. D/B/A GO FREIGHT HOLDINGS, Lamar Antwan Bennett| Trellis.Law

On March 03, 2023 a Motion-Secondary was filed involving a dispute between Byzfunder Ny Llc, and Go Freight Holdings, Inc. D B A Go Freight Holdings, Lamar Antwan Bennett, for Commercial - Contract in the District Court of Nassau County.

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NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/20/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

BYZFUNDER NY LLC, INDEX NO.: 603704/2023

Plaintiff,
vs.
MEMORANDUM OF LAW IN
GO FREIGHT HOLDINGS, INC. D/B/A GO FREIGHT OPPOSITION TO PRE-ANSWER
HOLDINGS AND LAMAR ANTWAN BENNETT, MOTION TO DISMISS

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
PROCEDURAL ARGUMENTS ...............................................................................5
DEFENDANTS’ ARGUMENT AGAINST THE FORUM SELECTION CLAUSE LACKS A

BASIS IN LAW .......................................................................................................................... 7

NEW YORK CONSTITUTION ARTICLE VI § 7 PROVIDES THE SUPREME
COURT WITH GENERAL ORIGINAL JURISDICTION ....................................10
FEES ARE NOT EXCESSIVE AND THUS NOT DEEMED A PENALTY ........12
DEFENDANTS BREACH OF CONTRACT HAS BEEN DEMONSTRATED ...12
THE TRANSACTION WAS NOT USURIOUS ACCORDING TO THE K9
BYTES STANDARD FOR CASH ADVANCES...................................................14
(i) AGREEMENT CONTAINED A MANDATORY RECONCILIATION PROVISION 15

(ii) AGREEMENT HAS NO FINITE TERM ...................................................................... 16

(iii) NO RECOURSE TO PLAINTIFF IF DEFENDANTS FILE BANKRUPTCY ........... 16

CONCLUSION ........................................................................................................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

Goldman v. Metropolitan Life Ins. Co. 5 NY3d 561 (2005) .....................................6

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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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Plaintiff, Byzfunder NY LLC, respectfully submits this Memorandum of Law in

Opposition of Defendants’ pre-Answer Motion to Dismiss pursuant to Civil Practice Law and

Rules (“CPLR”) § 3211(a)(7) and (a)(8).

PRELIMINARY STATEMENT

Plaintiff respectfully submits this memorandum of law in opposition to Defendants’

Motion to Dismiss pursuant to CPLR § 3211(a)(7) and (a)(8). Defendants raise CPLR § 3014 and

3017(a) defenses due to multiple causes of action as grounds for pre-answer dismissal although

this would require a ruling on the validity of the agreement. Defendants also raise General

Obligations Law § 5-1402 (choice of forum in foreign contracts) as grounds for a pre-answer

dismissal. Defendants further raises enforceability of the default fee under presumably CPLR

3211 § (a)(1) and is similarly meritless because there is nothing shockingly unconscionable about

a clause for calculating liquidated damages that assess a sum certain in the event of default. Finally,

Defendants argue for a premature dismissal on the merits based upon failing to allege a breach of

contract despite the agreement being attached to the complaint. Their burden to overcome for

these long shot arguments is governed by CPLR § 3211(a)(1) and has been denied by these courts

in similar matters. 1

Defendants’ strongest argument in favor of their Motion is that this Court lacks personal

jurisdiction under (a)(8), and that GOL 5-1402, the statutory forum non conveniens bar, is

applicable to this case. It will be shown that Defendants’ pre-answer Motion to Dismiss is just an

attempt at forum shopping. The jurisdiction and venue of this New York Supreme Court Court,

See Byzfunder v Grace Landscape, Index No. 600559/2023 (Supreme Court of New York, Nassau County) Hon.
1

Lisa Cairo; See UFS LLC v Shaday Fashion, Index No. 616255/2022 (Supreme Court of New York, Nassau County)
Hon. Bruce Cozzens; See Fox v Avelar Ventures, Index No. 602789/2023.

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and the choice of New York law to govern the transaction are clearly settled by the parties’

Agreement, on a page signed by the Defendants. Their premature argument about the merits of the

case indicates that their defense is entirely based upon interpretations of New York law, which this

Court is the most suited to adjudge.

This Court, very recently, and very thoroughly, evaluated Plaintiff’s standard contract

in Merchant Capital Collections as Assignee of Fox Capital Group, Inc. v Goodman Tile & Stone

Inc. et al., Index No. 611958/2022, (Nassau Co., Prager, J.). Defendants’ cross-motion for

summary judgment raises the same arguments for dismissal as found in the Goodman Tile case:

dismissal on jurisdictional grounds, or alternatively seeking summary judgment on the defense

that the Agreement is a usurious loan. The Court’s eight-page decision in Goodman Tile describes

why jurisdiction was proper pursuant to the forum selection clause, and how the Agreement

satisfied Second Department’s precedent for enforceable receivables transactions.

PROCEDURAL ARGUMENTS

PLAINTIFF HAS PROPELY PLED MULTIPLE CAUSES OF ACTION

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.”

Given this basic rule of civil procedure, it is clear that Defendant only wants to delay

recourse to Plaintiff and does not have any valid defense to Plaintiff’s breach of contract claim.

Plaintiff’s unjust enrichment claim is properly pled under CPLR 3014 and CPLR 3017(a) as an

alternative theory of recovery not yet duplicative of the breach of contract also included in the

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verified Complaint. In fact, Defendant seems to be admitting to the enforceability of the contract

as well as Defendants breach considering that Defendant believes the unjust enrichment cause of

action should be dismissed. Until this court rules on the enforceability of the contract, the cause

of action for unjust enrichment is properly pled as an alternate theory of recovery.

The only potentially meritorious argument in the Defendants’ motion is their claim that

the Plaintiff’s causes of action for breach of contract and unjust enrichment are duplicative. This

is true only where there is an enforceable contract:

"To state a claim for unjust enrichment, a plaintiff must allege that: (1) the
[defendant] was enriched, (2) at [plaintiff's] expense, and (3) that it is against equity
and good conscience to permit the [defendant] to retain what is sought to be
recovered. An unjust enrichment claim is not available where it simply duplicates,
or replaces, a conventional contract or tort claim. Such a claim is duplicative of a
breach of contract claim where "both causes of action seek damages for events
arising from the same subject matter that is governed by an enforceable contract."
See Attentive Home Care Agency, Inc. v Galinkin, 2022 NY Slip Op 30110[U],
*3-4 [Sup Ct, Kings County 2022].

Until this court rules on the enforceability of this agreement, the cause of action for

unjust enrichment is not yet 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.

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Metropolitan Life Ins. Co. 5 NY3d 561, 572 (2005). “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. This performance of

funding and Company Defendant’s failure to tender to the Plaintiff its portion of the daily

receipts, resulted in a continuing unlawful 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’ ARGUMENT AGAINST THE FORUM SELECTION CLAUSE LACKS

A BASIS IN LAW

The case law presented by the Defendants’ moving papers cite to the standard of review

for Choice of Law provisions which making them immaterial in demonstrating their burden on

overcoming the Plaintiff’s Choice of Forum. “[T]he personal jurisdiction requirement is a

waivable right,” however, and there are a “variety of legal arrangements’ by which a litigant may

give “express or implied consent to the personal jurisdiction of the court.” Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 472 n. 14 (1985) (quoting Insurance Corp. of Ireland v. Compagnie des

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Bauxites de Guinee, 456 U.S. 694, 703, (1982)). The same is true of venue. CPLR § 501, entitled

"Contractual provisions fixing venue," states, "[s]ubject to the provisions of section 510,

written agreement fixing place of trial, made before an action is commenced, shall be enforced

upon a motion for change of place of trial."

Likewise, a forum-selection clause, like the one contained in the Agreement in the present

case, is sufficient to vest New York courts with personal jurisdiction over a nonresident defendant

without regard to whether another independent ground for personal jurisdiction exists under the

New York long-arm statute N.Y. C.P.L.R. § 302 (McKinney 2006). “Where such forum-selection

provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable

and unjust,’ ... their enforcement does not offend due process.” Id. at note 14 (quoting The Bremen

v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972)). “i.e. a trial in the contractual forum would be so

gravely difficult and inconvenient that the challenging party would for all practical purposes, be

deprived of his or her day in court.” Bell Constructors v Evergreen Caissons, Inc., 236 A.D.2d

859, 860 (4th Dept 1997)

“Forum selection clauses, like the one contained in the subject Agreement, are

primafacie valid and should be enforced unless the resisting party clearly proves that

enforcement would be unreasonable and unjust... Trump v. Deutsche Bank Trust Co. Americas,

65 A.D.3d 1329, 887 N.Y.S.2d 121 (2d Dept. 2009). Any alleged overreaching, which is an

exception to the general rule that forum selection clauses are prima facie valid, must be based

on something more than the mere fact that the clause was a boilerplate provision printed on the

back of a form contract. Under the fraud exception, a forum selection clause in a contract is not

enforceable if the inclusion of that clause in the contract was the product of fraud or coercion.

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Contractual forum selection clauses are prima facie valid and should be enforced absent some

compelling reason to the contrary.” See Emerald Group Holdings v. NHTP LLC Index No.

612182/2021, NYSCEF Docket No. 47 (quoting Bernstain v. Wysoki, 77 A.D.3d 241,907

N.Y.S.2d 49 (2d Dept. 2010)).

Fraud or overreaching is a recognized defense to the enforceability of a forum selection

clause in New York and, to invalidate a forum selection clause on these grounds, the allegation

of fraud or overreaching must go, not to the contract as a whole, but to the clause itself. See

Emerald Group Holdings v. NHTP LLC Index No. 612182/2021, NYSCEF Docket No. 47

(quoting See Hunt v. Landers, 309 A.D.2d 900, 766 N.Y.S.2d 384 (2d Dept. 2003)).

In the instant matter, the subject Agreement contains a forum selection clause that

defendants were aware of when they executed said agreement. The Agreement, which was

signed by Defendant, dated October 24, 2022, states in pertinent part:

This Agreement, Security Agreement and Guaranty, Guaranty of
Performance, and any and all addendums, attachments, exhibits, and
other Documents relating to this Agreement in any way, shall be
governed by and construed in accordance with the laws of the state of
New York, without regards to any applicable principals of conflicts of
law. Any suit, action or proceeding arising hereunder, or the
interpretation, performance or breach hereof, shall, if PURCHASER so
elects, be instituted in any court sitting in any New York State Supreme
Court, (the "Acceptable Forums"). 2

The Defendants have not made the requisite strong showing that the subject clause was

the product of overreaching or was unreasonable, or that its enforcement would be unjust.

Accordingly, jurisdiction and venue are proper in this action. Defendants have agreed that New

York is an acceptable forum and have waived in advance any and all objections to the forum.

2
See NYSCEF document number 2, “Agreement”, page 4, paragraph 4.6.

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The permissive rule CPLR § 325 is at the discretion of this court and considering that the parties

have freely stipulated to the jurisdiction of any New York Supreme Court due to the courts

familiarity with the current subject matter, this courts jurisdiction is proper.

NEW YORK CONSTITUTION ARTICLE VI § 7 PROVIDES THE SUPREME COURT

WITH GENERAL ORIGINAL JURISDICTION

The supreme court shall have general original jurisdiction in law and equity and the

appellate jurisdiction herein provided. NY Const., art. VI § 7. Defendant misconstrues CPLR

§325(a), which states the supreme court may remove the action…upon such terms as may be just.”

Even if removal was appropriate, which it is not, it is discretionary upon such terms as may be

just. In determining such terms, this court should apply the same standard used in forum non

conveniens cases entitling the Plaintiff’s choice of forum to deference.

“On a motion to dismiss on the ground of forum non conveniens, the plaintiff's choice of

forum should generally not be disturbed, and the burden is on the movant to demonstrate the

relevant factors that militate against a New York court's acceptance of the litigation. Among the

factors weighed by the court in determining a motion to dismiss based on forum non conveniens

are: 1) the burden on the New York courts; 2) the potential hardship to the defendant; 3) the

unavailability of an alternative forum; 4) residency of the parties; and 5) that the transaction out of

which the cause of action arose occurred primarily in a foreign jurisdiction. Centenaro v. Poliero,

901 N.Y.S.2d 905, 905 (Sup. Ct.).

Emphatically, CPLR section 325 does not apply, as this court has general original

jurisdiction according to the constitution, and there was no mistake by the Plaintiff of its choice of

court. The Plaintiff prefers this Court’s familiarity and expertise in hearing contract cases of this

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type. On the first factor, the Plaintiff has dozens of cases based on identical or nearly identical

contract language currently pending before this court.

Therefore, leveraging this Court’s familiarity with the factual subject matter significantly

reduces the burden on the Civil Court of the City of New York. On the second factor, the county

and supreme courts in Nassau county are in such close vicinity to one another, that this factor poses

no additional hardship to the defendant. On the third factor, this Court is ready and available to

hear the case, and removal would only delay justice. On the fourth and fifth factors the acts giving

rise to the breach of contract occurred in New York, under New York law; and there are no facts

uniquely familiar to the Civil Court of the City of New York about this case to warrant its particular

expertise in this matter.

Furthermore, section 4.5 of the parties’ Agreement 3 clearly memorializes that any litigation

would ultimately be determined in a forum of Plaintiff’s choosing, and therefore according to both

the law and the equities the Defendants’ should be estopped from arguing for removal:

Any suit, action or proceeding arising hereunder, or the interpretation,
performance or breach hereof, shall, if PURCHASER so elects, be instituted in any
court sitting in New York, (the "Acceptable Forums"). 4

One legal arrangement is an agreement by the parties to a contract that they will

submit to the courts of a particular forum a dispute arising from the contract. Burger King

Corp., 471 U.S. 462 at note 14. “Where such forum-selection provisions have been

obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,…

their enforcement does not offend due process.” Id. at note 14 (quoting The Bremen v.

Zapata Off–Shore Co., 407 U.S. 1, 15 (1972)).

3
See NYSCEF document number 2, “Agreement”, page 4, paragraph 4.6.
4
See NYSCEF document number 2, “Agreement”, page 4, paragraph 4.6.

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This court absolutely has subject matter jurisdiction in this case, and pursuant to

the valid forum selection clause in the parties’ agreement, there are no just grounds for

removal to an alternate forum.

FEES ARE NOT EXCESSIVE AND THUS NOT DEEMED A PENALTY

Parties are free to agree to a liquidated damages clause “provided that the clause is neither

unconscionable nor contrary to public policy”. 5In the instant matter, Plaintiff’s “fee” amounts to

$2,500.00 which is fifteen (15%) percent of the amount of the damages due to Defendant’s breach

of $15,785. See Agreement. Perseus provides a guide for when excessive fees should not be

sustained. 6 In Perseus, the court rejected the liquidated damages since the “liquidated damages

amount is more than seven times that of Perseus's actual damages.” 7 Courts have routinely held

that such fees are not excessive or a penalty. In fact, the nominal fees in matters similar to the case

at bar have also been allowed and ruled not excessive or a penalty under the above reasoning. 8 As

such, Plaintiff’s fees are not a “penalty” and Defendants are merely attempting to delay what

rightfully belongs Plaintiff.

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 in PAGE ONE states:

5
Truck Rent-A-Center, Inc. v Puritan Farms 2nd, Inc., 41 NY2d 420 (1977).
6
Perseus Telecorn, LTD. v Indy Research Labs, LLC, 2018 NY Slip Op 33083[U] (Sup Ct, NY County 2018).
7
Id.
8
See attached Exhibit A “Vox Funding v Lifepointe Hospice Dallas Metroplex LLC”; Exhibit B Union Funding Source v Sunshine Halal

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“In consideration of payment by PURCHASER to Merchant of the Purchase Price
set forth above, Merchant hereby sells, assigns and transfers to PURCHASER
(making PURCHASER the absolute owner) the Purchased Percentage of all of
Merchant's payments, receipts, settlements and funds paid to or received by or for
the account of Merchant… until the Purchased Amount has been delivered by or
on behalf of Merchant to PURCHASER…”
“Merchant hereby authorizes PURCHASER to ACH debit the agreed Remittance
from the Account on the agreed upon Payment Frequency...” 9
As clearly shown on the very first page of 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 pay run 10 which shows lack of remittance. As Defendant failed to 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. 11 In the instant matter, Plaintiff

attached the agreement as an exhibit with the Summons and Complaint. 12

9
See NYSCEF doc no 2, page 1.
10
See NYSCEF doc no 3.
11
Valley Cadillac Corp. v. Dick, 238 A.D.2d 894 (1997).
12
See NYSCEF document number 1 Summons and Complaint and 2 “Agreement”.

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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. 13

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.

In determining whether a transaction is a loan, the court must examine whether or not

Defendant is absolutely entitled to repayment under all circumstances. 14 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. 15

13
K9 Bytes Inc., et al. v. Arch Capital Funding, LLC, et al., Index No. 54755/2016 (Sup. Ct. Westchester Co. 5/8/17).
14
K9 Bytes, Inc. v Arch Capital Funding, LLC, 57 N.Y.S.3d 625 (Sup Ct., Westchester County 2017).
15
Id.

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(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”. 16

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 one page two:

“As long as an Event of Default, or breach of this agreement has not occurred, Merchant
may request a retroactive reconciliation of the total Remittance… Such reconciliation, if
applicable, shall be performed by PURCHASER within two (2) Business Days following
its receipt of Merchant's request for reconciliation...” 17 (emphasis added)
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.

16
Retail Capital, LLC v Spice Intentions Inc., 2016 NY Slip Op 32614[U] (Sup Ct., Queens County 2016).
17
See NYSCEF doc no. 2, page 2, section 1.3.

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(ii) AGREEMENT HAS NO FINITE TERM

In addition, to determine if a transaction is a loan, the Court will review the Agreement to
18
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 continual basis, the contract allowed for

them to demand this from Plaintiff by providing documentation. Defendants chose not to do this.

(iii) 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 PAGE ONE of the Agreement states that

“Merchant going bankrupt or going out of business, or experiencing a slowdown in

business, or a delay in collecting its receivables does not constitute a breach of this

Agreement;” 19

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.

18
IBIS Capital Group, LLC v Four Paws Orlando LLC, 2017 NY Slip Op 30477[U] (Sup. Ct., Nassau County 2017).
19
See NYSCEF doc no 2, “Agreement”, page 1, paragraph 2.

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FILED: NASSAU COUNTY CLERK 07/20/2023 10:33 AM INDEX NO. 603704/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/20/2023

Defendants have not requested a reconciliation, remitted financial statements to Plaintiff or

requested a reduction in payments.

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.

CONCLUSION

For all the foregoing reasons, the Defendants’ pre-answer motion to dismiss should be

denied, the Court should find 1) it has personal jurisdiction over the Defendants; 2) that as a matter

of law the documentary evidence supports the Plaintiff’s allegation that the agreement was for the

purchase of receivables; 3) that until the Court rules on the enforceability of the Agreement the

Plaintiff’s claims are not duplicative as a matter of law; 4) the agreement is for a cash advance ofr

future receivables 4) and that the Defendants be ordered to enter a response to Plaintiff’s complaint

within 30 days.

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.

Nassau County, New York Respectfully submitted,
July 20, 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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FILED: NASSAU COUNTY CLERK 07/20/2023 10:33 AM INDEX NO. 603704/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/20/2023

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 4179, 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.

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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FILED: NASSAU COUNTY CLERK 07/20/2023 10:33 AM INDEX NO. 603704/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/20/2023

________________________________________________________________________
Index No. 603704/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

BYZFUNDER NY LLC,

Plaintiff,

-against-

GO FREIGHT HOLDINGS, INC. D/B/A GO FREIGHT HOLDINGS AND LAMAR
ANTWAN BENNETT

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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Case Info

Judge

James Mccormack Track Judge’s New Case

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Document Filed Date

July 20, 2023

Case Filing Date

March 03, 2023

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Motion-Secondary: Byzfunder Ny Llc v. Go Freight Holdings, Inc. D/B/A GO FREIGHT HOLDINGS, Lamar Antwan Bennett

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