Motion to Set Aside or Vacate Judgment, Default or Dismissal in Bmf Advance, Llc v. Caribbean Sun Airlines Inc D/B/A World Atlantic Airlines, Joel Darren Plasco| Trellis.Law

On January 11, 2022 a Motion-Secondary was filed involving a dispute between Bmf Advance, Llc, and Caribbean Sun Airlines Inc D B A World Atlantic Airlines, Joel Darren Plasco, for Commercial - Contract in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 11/11/2022 05:56 PM INDEX NO. 500934/2022
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/11/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS

BMF ADVANCE, LLC,
Index No.: 500934/2022
Plaintiff,

-against-

CARIBBEAN SUN AIRLINES INC D/B/A WORLD
ATLANTIC AIRLINES, JOEL DARREN PLASCO,
and DAVID ALAN BOYER,

Defendants.

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO THE MOTION TO
VACATE DEFAULT JUDGMENT OF CARIBBEAN SUN AIRLINES INC.

WELLS LAW P.C.
Steven W. Wells
229 Warner Road
Lancaster, New York 14086
Tel: 716-983-4750
Email: steve@wellspc.com

Attorneys for Plaintiff

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TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………………………..iii

PRELIMINARY STATEMENT……………………………………………………………...…..1

FACTUAL BACKGROUND……………………………………………………………………..2

I. The Parties………………………………………………………………………...2

II. The Purchase Agreement………………………………………………………….3

III. The Guaranty…………………………………………………………………..….3

IV. Plaintiff’s Performance and Defendants’ Default…………………………………3

V. Plaintiff’s Complaint and the Default Judgment………………………………….4

VI. Defendants’ Motion to Vacate…………………………………………………….5

LEGAL ARGUMENT………………………………………………………………………...…..5

I. Defendants’ Motion to Vacate the Default Judgment Should Be Denied………...5

A. Plaintiff Established Its Right to a Default Judgment
Against Merchant………………………………………………………….5

B. Merchant Has Not Established Grounds to Vacate the
Default Judgment……………………………………………………….…5

1. Merchant Has Not Established a Reasonable Excuse
for Its Default…………………………………………………...…6

2. Merchant Cannot Rely on CPLR § 317…………………………...8

3. The Court Need Not Consider Whether Merchant Has a
Meritorious Defense ……………………………………………....8

4. Merchant Has Not Established a Meritorious Defense…………....9

CONCLUSION…………………………………………………………………………………..10

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TABLE OF AUTHORITIES

Cases

Aaron v. Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C.,
12 A.D.3d 753, 754 (3d Dep’t 2004)……………………………………………….……..5

Bank of New York Mellon v. Genova,
74 N.Y.S.3d 64, 66 (2018)…………………………………………………………...……7

C&H Import & Export, Inc. v. MNA Global, Inc.,
79 A.D.3d 784, 785 (2d Dep’t 2010)……………………………………………….……..7

City Servs, Inc. v. Bomzer,
866 N.Y.S.2d 91 (Sup. Ct. Kings Cty., June 23, 2008)……………………………….…..7

Deutsche Bank Nat'l Tr. Co. v. Patisso,
142 N.Y.S.3d 403, 405 (2d Dep’t 2021)………………………………………………..…8

DiBlasio v. Kaufman,
282 A.D.2d 496 (2d Dep’t 2001)……………………………………………………….....8

Dove v. 143 School St. Realty Corp.,
172 A.D.3d 1315, 1318 (2d Dep’t 2018)………………………………………………….8

Dwyer Agency of Mahopac, LLC v. Dring Holding Corp.,
164 A.D.3d 1217, 1218 (2d Dep’t 2018)……………………………………………….…8

HSBC Bank USA, N.A. v. Powell,
51 N.Y.S.3d 116, 118 (2d Dep’t 2017)………………………………………………...….7

Peacock v. Kalikow,
239 A.D.2d 188 (1st Dep’t 1997)……………………………………………………...….9

State by Abrams v. Wiley,
117 A.D.2d 856, 856-57 (3d Dep’t 1986)……………………………………………...….9

U.S. Bank N.A. v Alba,
11 N.Y.S.3d 864 (2d Dep’t 2015)……………………………………………………...….5

Wells Fargo Bank, N.A. v. Leonardo,
167 A.D.3d 816, 817-18 (2d Dep’t 2018)………………………………………………....8

Wunsch v. Cerwinski,
36 A.D.3d 612, 612 (2d Dep’t 2007)…………………………………………………..….7

iii

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Statutes

Business Corporation Law § 307…………………………………………………………….…1, 6

CPLR § 317…………………………………………………………………………………….....8

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Plaintiff BMF ADVANCE, LLC (“Plaintiff”) hereby responds in opposition to the motion

of Defendant CARIBBEAN SUN AIRLINES INC D/B/A WORLD ATLANTIC AIRLINES

(“Merchant”) to vacate the March 24, 2022, default judgment entered by the Clerk of this Court

and states as follows.

PRELIMINARY STATEMENT

This is a simple breach of contract case. On June 30, 2021, Plaintiff and Merchant entered

into a receivables purchase agreement (the “Purchase Agreement”). Merchant breached the

Purchase Agreement and, on January 11, 2022, Plaintiff filed suit. On March 24, 2022 – after

Merchant had failed to appear – the Kings County Clerk entered a default judgment in favor of

Plaintiff and against Merchant (and the other Defendants) in the amount of $739,126.30. Merchant

now seeks to vacate the judgment.

Merchant argues that Plaintiff’s service through the New York Secretary of State was not

effective because “because [Merchant] is not registered to conduct business in the State of New

York.” This argument, however, ignores Business Corporation Law (“BCL”) § 307, which

expressly provides for service of process on an unauthorized foreign corporation via the New York

Secretary of State. Plaintiff served Merchant pursuant to this statute. The tracking information

establishes that service was actually delivered and received at Merchant’s mailing address on file

with the Florida Secretary of State. In light of the foregoing, Merchant’s bare denial of receipt is

insufficient to constitute a reasonable excuse for default. Moreover, when a defendant fails to

present a reasonable excuse for its default, the Court need not consider whether or not it has a

meritorious defense to the underlying action. Respectfully, Defendants’ motion should be denied.

Regardless, Merchant has not established a meritorious defense sufficient to vacate the

default judgment. Merchant’s only defense is that the signatories to the Purchase Agreement –

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Defendants Joel Darren Plasco (“Mr. Plasco”) and David Alan Boyer (“Mr. Boyer”) (together with

Merchant, “Defendants”) – lacked authority to bind the company. However, according to

Merchant’s 2020 Foreign Profit Corporation Amended Annual Report filed with the Florida

Secretary of State, Mr. Boyer was Merchant’s President. Moreover, Merchant concedes that Mr.

Boyer was party to a May 10, 2021, Stock Purchase Agreement to acquire ownership of the

company (the agreement was allegedly never consummated). Earlier this week, Plaintiff’s counsel

asked Merchant’s counsel to provide a copy of that agreement so that Plaintiff (and the Court)

could determine whether it authorized Mr. Boyer to act on Merchant’ behalf during its pendency.

To date, Merchant’s counsel has refused to provide the agreement after numerous requests.

This refusal is especially concerning because, just ten days ago, a Florida court found

“probable cause to believe that [Merchant’s alleged owner, Tomas Romero] fabricated

evidence….” (Affirmation of Steven Zakharyayev (“Zakharyayev Aff.”), Ex. 1). Neither Plaintiff

nor the Court, therefore, can rely on Merchant’s uncorroborated representations. As such, Plaintiff

respectfully requests that the Court order Merchant to produce the May 10, 2021, Stock Purchase

Agreement and hold in abeyance any decision on Merchant’s motion until it does (unless, of

course, the Court determines that the motion should be denied on other grounds).1

FACTUAL BACKGROUND

I. The Parties.

Plaintiff is a company engaged in the receivables financing business. (See NYSCEF Doc.

1, Ver. Compl. ¶ 1). Merchant is a foreign corporation. (Id. ¶ 2). Mr. Plasco and David Alan

Boyer are (or held themselves out as) representatives of Merchant. (See id. ¶¶ 3-4).

1
Even if this document is produced, its authenticity would obviously have to be independently
verified given that Merchant has a history of fabricating evidence.
2

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II. The Purchase Agreement.

On June 30, 2021, Plaintiff and Merchant entered into the Purchase Agreement pursuant to

which Plaintiff purchased 10% Merchant’s total future accounts receivable up to the sum of

$725,000 in exchange for an upfront purchase price of $540,000. (NYSCEF Doc. No. 2, Purchase

Agrmt.) The parties agreed to an initial weekly payment of $100,000 (the “Remittance”), which

amount represented an initial good faith estimate of the Purchased Percentage of Merchant’s daily

receivables. (See id., Ex. A at p. 1). The Purchase Agreement was signed by Messrs. Plasco and

Boyer on Merchant’s behalf. (See id.)

III. The Guaranty.

In connection with the Purchase Agreement, Mr. Plasco and Mr. Boyer executed a

Guaranty of Performance (the “Guaranty”) pursuant to which they guaranteed Merchant’s

performance to Plaintiff under the Purchase Agreement. (Id., Ex. A at pp. 7-8)

IV. Plaintiff’s Performance and Defendants’ Default.

On or about June 30, 2021, Plaintiff funded the $540,000 Purchase Price (less applicable

and disclosed upfront fees). (See NYSCEF Doc. No. 1, Compl; NYSCEF Doc. No. 2, Purchase

Agrmt.) After receiving the Purchase Price, Merchant made no payments to Plaintiff, leaving the

entire $725,000 balance of the Purchased Amount outstanding. (See NYSCEF Doc. No. 3,

Payment History). On January 7, 2022, Merchant defaulted under the Purchase Agreement by

failing to give Plaintiff 24 hours advance notice that there would be insufficient funds in the

designated account such that the ACH of the Remittance was not honored by Merchant’s bank.

(See id.) Merchant also defaulted by failing to ever remit any of its receivables. (See id.)

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V. Plaintiff’s Complaint and the Default Judgment

On January 11, 2022, Plaintiff filed the Summons and Complaint in this case. (See

NYSCEF Doc. No. 1). Plaintiff alleged that Merchant had breached the Purchase Agreement and

that Messrs. Plasco and Boyer had breached the Guaranty. (See id. ¶¶ 10-17).

On January 24, 2022, Plaintiff served Merchant via the New York Secretary of State.

(NYSCEF Doc. No. 4, Aff. of Service). On February 12, 2022, Plaintiff served an additional copy

of the Summons and Complaint on Merchant and Messrs. Plasco and Boyer pursuant to CPLR

3215(g). (See NYSCEF Doc. No. 7, Aff. of Add. Mailing).

Defendants failed to appear, answer, or raise an objection to the Complaint within the

requisite time period. (See NYSCEF Doc. No. 10, Judgment).

As such, on March 24, 2022, the Kings County Clerk entered a default judgment in favor

of Plaintiff and against Defendants, jointly and severally, in the amount of $739,126.30. (See

NYSCEF Doc. No. 11, Judgment).

VI. Defendants’ Motion to Vacate.

On September 15, 2022, Merchant filed its motion to vacate the Judgment. (See NYSCEF

Doc. Nos. 11-18).2 Merchant alleged that it was not served with process. (See NYSCEF Doc. No.

24, Memo. of Law at pp. 3-5). Merchant further alleged that Messrs. Plasco and Boyer were

without authority to execute the Purchase Agreements on its behalf. (See id. at p. 1). Plaintiff now

responds in opposition.

2
On September 19, 2022, Merchant filed a corrected version of its motion. (See NYSCEF Doc.
Nos. 22-30).
4

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LEGAL ARGUMENT

I. Defendants’ Motion to Vacate the Judgment Should be Denied.

A plaintiff establishes its right to a default judgment by submitting proof of service of the

summons and complaint, proof of facts constituting the claim, and proof of the defendants’ default.

See U.S. Bank N.A. v Alba, 11 N.Y.S.3d 864 (2d Dep’t 2015). To prevail on a motion to vacate a

default judgment, the defaulting party “must establish a reasonable excuse for the default as well

as a meritorious defense.” Aaron v. Carter, Conboy, Case, Blackmore, Napierski & Maloney,

P.C., 12 A.D.3d 753, 754 (3d Dep’t 2004) (citations omitted). “[The defaulting party] must also

demonstrate that the default was not a result of willfulness and that vacating the default would not

result in prejudice to [the party who obtained judgment].” Id.

A. Plaintiff Established Its Right to a Default Judgment Against Merchant.

On January 11, 2022, Plaintiff filed the Summons and Complaint. (See NYSCEF Doc. No.

1, Ver. Compl.) The Complaint contains proof of facts constituting Plaintiff’s claim and was

verified by Gavriel Yitzchakov, Plaintiff owner. (See id.) Plaintiff filed an Affidavit of Service

evidencing that, on January 24, 2022, Merchant was served with the Summons and Complaint via

the New York Secretary of State. (See NYSCEF Doc. No. 4, Aff. of Service). Finally, Plaintiff

established Merchant’s default. (See NYSCEF Doc. No. 10, Judgment). Pursuant to the foregoing,

Plaintiff demonstrated its right to a default judgment against Merchant and such judgment was

properly entered.

B. Merchant Has Not Established Grounds to Vacate the Default Judgment.

Merchant has not established a reasonable excuse for its default. Nor has it articulated a

meritorious defense. Respectfully, its motion to vacate the Judgment should be denied.

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1. Merchant Has Not Established a Reasonable Excuse for Its Default.

Merchant’s only excuse for default is that “Plaintiff did not properly serve [Merchant] with

the Summons and Complaint because [Merchant] is not registered to conduct business in the State

of New York, rendering service via the New York Secretary of State insufficient to bring CSA

under the jurisdiction of this Court.” (NYSCEF Doc. No. 24, Memo. of Law at p. 4).

In fact, Merchant was properly served pursuant to BCL § 307, which expressly provides

for service of process on an unauthorized foreign corporation via the New York Secretary of State.

Under this statute, “process against [a] foreign corporation may be served upon the secretary of

state as its agent.” BCL § 307(a).3 “Service of such process upon the secretary of state shall be

made by personally delivering to and leaving with…the secretary of state… a copy of such process

together with the statutory fee.” Id. § 307(b). “Such service shall be sufficient if notice thereof

and a copy of the process are….[s]ent by or on behalf of the plaintiff to such foreign corporation

by registered mail with return receipt requested, at the post office address specified for the purpose

of mailing process, on file in the department of state, or with any official or body performing the

equivalent function, in the jurisdiction of its incorporation….” Id. § 307(b)(2). “Where service of

a copy of process was effected by mailing…proof of service shall be by affidavit of compliance

with this section filed, together with the process, within thirty days after receipt of the return receipt

signed by the foreign corporation, or other official proof of delivery or of the original envelope

mailed.” Id. § 307(c)(2).

3
This statute applies “[i]n any case in which a non-domiciliary would be subject to the personal
or other jurisdiction of the courts of this state under article three of the civil practice law and rules.”
BCL § 307(a). Here, Defendants consented to personal jurisdiction in New York. (NYSCEF Doc.
No. 2, Purchase Agrmt. § 4.5)

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Here, service of process was effected by personally delivering a copy of the Summons and

Complaint to the New York Secretary of State. (See NYSCEF Doc. No. 4, Aff. of Service). A

copy of the Summons and Complaint was then sent to Merchant by registered mail, with return

receipt requested, at Merchant’s mailing address on file with the Florida Secretary of State (PO

BOX 660479, Miami, Florida 33266). (See NYSCEF Doc. No. 4, Aff. of Service; Zakharyayev

Aff. ¶¶ 4-5, Exs. 2-3). The Affidavit of Service included the tracking number of the mailing, which

provides “official proof of delivery.” (See NYSCEF Doc. No. 4, Aff. of Service; Zakharyayev

Aff. ¶¶ 4-5, Exs. 2-3).4 Respectfully, the foregoing establishes that Merchant was properly served.

In the face of such presumptively valid service, Merchant offers nothing but a bare denial

of receipt. (See NYSCEF Doc. No. 25, Affidavit of Iraq Pacheco ¶ 4) (“[Merchant] never received

the Summons and Complaint in this matter”). As a matter of law, however, a bare denial of receipt

in the face of presumptively valid service is insufficient to constitute a reasonable excuse for

default. See, e.g., HSBC Bank USA, N.A. v. Powell, 51 N.Y.S.3d 116, 118 (2d Dep’t 2017) (“[T]he

appellant’s bare denial of service of the summons and complaint did not constitute a reasonable

excuse for her delay in answering”); Bank of New York Mellon v. Genova, 74 N.Y.S.3d 64, 66

(2018) (“[Defendants] bare and unsubstantiated denial of service of the summons and complaint

did not constitute a reasonable excuse for his default in answering”); Wunsch v. Cerwinski, 36

A.D.3d 612, 612 (2d Dep’t 2007) (“The defendant’s bare denial of service was insufficient to rebut

the prima facie proof of proper service ….”); C&H Import & Export, Inc. v. MNA Global, Inc., 79

A.D.3d 784, 785 (2d Dep’t 2010); City Servs, Inc. v. Bomzer, 866 N.Y.S.2d 91 (Sup. Ct. Kings

Cty., June 23, 2008).

4
The U.S Postal Service’s information associated with the tracking number shows that the
Summons and Complaint were delivered on February 10, 2022. (Zakharyayev Aff. ¶ 5, Ex. 3).
7

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2. Merchant Cannot Rely on CPLR § 317.

Merchant cites CPLR § 317 to claim that it may be allowed to defend the action on the

basis they allegedly did not receive the service of process in time to defend the complaint. (See

NYSCEF Doc. No. 24, Memo. of Law at p. 4) CPLR § 317, however, applies only “upon a finding

of the court that [the person] did not personally receive notice of the summons in time to defend

and has a meritorious defense.” In the instant case, the Affidavit of Service “gives rise to a

presumption of proper service.” Deutsche Bank Nat'l Tr. Co. v. Patisso, 142 N.Y.S.3d 403, 405

(2d Dep’t 2021). Defendants’ bare denial of receipt is insufficient to rebut this presumption. See

DiBlasio v. Kaufman, 282 A.D.2d 496 (2d Dep’t 2001) (holding that defendants were not entitled

to vacatur of default judgment under CPLR § 317 where they did not adequately rebut the

presumption of delivery of summons and complaint duly mailed to their office). Merchant has

failed to demonstrate that it did not personally receive notice and, as such, cannot rely on CPLR §

317.

3. The Court Need Not Consider Whether Merchant Has a Meritorious
Defense.

When a defendant fails to present a reasonable excuse for its default, the Court need not

consider whether or not it has a meritorious defense to the underlying action. See Dove v. 143

School St. Realty Corp., 172 A.D.3d 1315, 1318 (2d Dep’t 2018) (holding that when the defendants

failed to present a reasonable excuse for their default, “it [was] unnecessary to determine whether

the defendants demonstrated the existence of a potentially meritorious defense”) (citing Wells

Fargo Bank, N.A. v. Leonardo, 167 A.D.3d 816, 817-18 (2d Dep’t 2018); Dwyer Agency of

Mahopac, LLC v. Dring Holding Corp., 164 A.D.3d 1217, 1218 (2d Dep’t 2018)). In the instant

case, Merchant has not established a reasonable excuse for its default and, as such, the Court need

not consider whether it has a meritorious defense.

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4. Merchant Not Established a Meritorious Defense.

Irrespective of whether Merchant has established a reasonable excuse for its default, it has

not established a meritorious defense. As such, its request to vacate the default judgment should

be denied.

“In order to demonstrate a meritorious defense, a party must submit an affidavit from an

individual with knowledge of the facts. The affidavit submitted from such individual must make

sufficient factual allegations; it must do more than merely make conclusory allegations or ‘vague

assertions[s].” Peacock v. Kalikow, 239 A.D.2d 188 (1st Dep’t 1997) (citations omitted); see also

State by Abrams v. Wiley, 117 A.D.2d 856, 856-57 (3d Dep’t 1986) (“The burden of establishing

the existence of a meritorious defense in the context of a motion to vacate a default judgment is

not met by conclusory allegations which are not supported by factual allegations”).

Merchant’s only defense is that “David Alan Boyer and Joel Darren Plasco [the signatories

to the Purchase Agreement]…falsely represent[ed] they were employed by and have authority to

execute contracts on behalf of [Merchant].” However, according to Merchant’s 2020 Foreign

Profit Corporation Amended Annual Report filed with the Florida Secretary of State, Merchant

represented that Mr. Boyer was its President. (Zakharyayev Aff. ¶ 6, Ex. 4). In this same report,

Merchant also represented that Mr. Boyer was its registered agent. (See id.) Mr. Boyer signed

this report as Merchant’s President. (See id.)5

Moreover, in a lawsuit, Merchant stated that Mr. Boyer was party to a May 10, 2021, Stock

Purchase Agreement to acquire ownership of the company. (NYSCEF Doc. No. 28, Florida

5
A subsequent report identifies Iraq Pacheco as Merchant’s President, (see Zakharyayev Aff., Ex.
__), although, in his Affidavit, Mr. Pacheco states that he is Merchant’s CFO and has “occupied
[this position] since 2019,” (NYSCEF Doc. No. 25, Pacheco Aff. ¶ 1).

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Compl. ¶ 9). While Merchant contends that Mr. Boyer failed to consummate the purchase by

September 15, 2021, (see id.), the Purchase Agreement in this case was signed on June 30, 2021,

(see NYSCEF Doc. No. 2, Purchase Agrmt.) Plaintiff requested that Merchant’s counsel provide

a copy of the Stock Purchase Agreement so that Plaintiff and the Court can determine if it provided

Mr. Boyer with authority to act on Merchant’s behalf during its pendency. (Affirmation of Steven

W. Wells ¶ 3, Ex. 1). To date, however, Merchant’s counsel has not provided that document. (Id.

¶ 4).

As noted above, this refusal is especially concerning because, just ten days ago, a Florida

court found “probable cause to believe that [Merchant’s alleged owner, Tomas Romero] fabricated

evidence….” (Zakharyayev Aff., Ex. 1). Respectfully, therefore, Merchant has no credibility.

Neither Plaintiff nor the Court can trust Merchant to represent accurately the contents of the Stock

Purchase Agreement. Plaintiff, therefore, respectfully requests that the Court order Merchant to

produce the May 10, 2021, Stock Purchase Agreement and hold in abeyance any decision on

Merchant’s motion until it does (unless, of course, the Court determines that the motion should be

denied on other grounds).6

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny Merchant’s

motion.

6
Even if this document is produced, its authenticity would obviously have to be independently
verified given that Merchant has a history of fabricating evidence.
10

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Dated: November 11, 2022 Respectfully Submitted,

/s Steven W. Wells
Steven W. Wells
WELLS LAW P.C.
229 Warner Road
Lancaster, New York 14086
(716) 983-4750
steve@wellspc.com

Attorneys for Plaintiff

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS

BMF ADVANCE, LLC, Index No.: 500934/2022

Plaintiffs, AFFIRMATION OF
-against- CERTIFICATION OF
WORD COUNT
CARIBBEAN SUN AIRLINES INC D/B/A WORLD
ATLANTIC AIRLINES, JOEL DARREN PLASCO,
and DAVID ALAN BOYER,

Defendants.

Steven W. Wells, an attorney at law duly admitted to practice law before the courts of the

State of New York, affirms the following to be true and accurate, upon information and belief, and

pursuant to CPLR § 2106: I hereby certify that the word count of this Affirmation complies with

the word limits of 22 New York Codes, Rules and Regulations § 202.8-b(a).

According to the word processing system used to prepare this Affirmation, the total word

count for all printed text pertaining to Plaintiff’s Reply Memorandum of Law in Opposition to the

Motion to Vacate Default Judgment of Caribbean Sun Airlines Inc., exclusive of all material

omitted under 22 NYCRR § 202.8-b(b), is 2,934 words.

Dated: November 11, 2022 Respectfully submitted:
Lancaster, New York WELLS LAW P.C.

By: /s/Steven W. Wells
Steven W. Wells, Esq.
229 Warner Road
Lancaster, New York 14086
Tel.: (716) 983-4750
Email: steve@wellspc.com

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Motion-Secondary: Bmf Advance, Llc v. Caribbean Sun Airlines Inc D/B/A World Atlantic Airlines, Joel Darren Plasco

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