Preview
FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022
NYSCEF
Filing
DOC.
# NO.
133250853 114 E-Filed 08/23/2021 11:58:48 PM RECEIVED NYSCEF: 12/01/2022
15"
W THE CIRCUIT COURT OF THE
JUDICIAL CIRCUIT W AND FOR PALM
BEACH COUNTY, FLORIDA
C1VIL DIVISION
HON. HOWARD K. COATES
CASE NO.: 50-2020-CA-012935
BEN-ZION ALCALAY,
Plaintiff,
v.
ATLAS CYBERSECURITY, LLC,
a New York Limited Liability Company,
DACS CYBERSECURITY HOLDINGS, LLC,
a New York Limited Liability Company,
BARRY DYNKM and BENJAMW DYNKM,
Defendants.
DEFENDANTS'
MOTION TO SET ASIDE JUDICIAL DEFAULT,
TO DISMISS FOR HAVING FILED A DUPLICATIVE ACTION,
AND, IN THE ALTERNATIVE, TO QUASH SERVICE OF PROCESS AND SET AN
EVIDENTIARY HEARING TO CONFIRM THAT PROCESS WAS NOT SERVED
COMES NOW, Defendants Atlas Cybersecurity LLC, DACS Cybersecurity Holdings LLC,
Barry Dynkin, and Benjamin Dynkin ("Defendants"), by and through their undersigned counsel
and pursuant to Rule 1.540 of the Florida Rules of Civil Procedure, hereby request this Court to
set aside its Order granting Judicial Default and to Dismiss for the reasons set forth herein.
I. THIS ACTION SHOULD BE DISMISSED SINCE PLAINTIFF IMPROPERLY
FILED TWO (2) ESSENTIALLY IDENTICAL ACTIONS BEFORE THIS
COURT AND DEFENDANTS HAVE ANSWERED THE LATER-FILED ACTION
1. It is respectfully submitted that this action should be dismissed outright since
Plaintiff filed a superseding action after the commencement of this action, against the same
** ***
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Defendants, for relief which is identical to the causes of action and relief sought in much of this
action (hereinafter referred to as "Plaintiff's Duplicative Action").
2. Plaintiff's Duplicative Action is before this same Court under Case No. 50-2021-
CA-000278 which was commenced with the filing of the Complaint on January 7, 2021, nearly
two (2) months after this instant action was commenced with the filing of the Complaint on
November 23, 2020.
3. Accordingly, since Defendants consent to proceeding with the superseding
Plaintiff's Duplicative Action and have already filed an Answer in Plaintiff's Duplicative Action,
this Court should dismiss this instant action has having been superseded by Plaintiff's
Duplicative Action.
4. It should be clear to this Court that Plaintiff should not have the ability to file
multiple actions against the same Defendants alleging causes of action and seeking relief which
are common to both actions.
5. It isunduly burdensome on the Defendants to have to litigate what are essentially
two (2) identical matters, and it iswholly improper for Plaintiff to have filed two (2) essentially
identical actions let alone for Plaintiff to be entitled to proceed on both of them simultaneously,
which is prejudicial to Defendants.
6. It is respectfully submitted that Plaintiff has brought two (2) essentially identical
actions against Defendants solely to harass Defendants and to cause Defendants to incur
unnecessary legal fees and costs in defending two (2) essentially identical actions.
7. This Court should not condone such conduct and in light of the fact that
Defendants have filed an Answer to the Corrected Complaint filed in Plaintiff's Duplicative
Action, this instant action should be dismissed forthwith.
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II. PLAINTIFF FAILED TO SERVE DEFENDANTS WITH THE OPERATIVE
COMPLAINT AND ACCORDINGLY, MISLED THIS COURT TO ENTER
DEFAULT AGAINST DEFENDANTS WHEN IN FACT PLAINTIFF FAILED TO
SERVE DEFENDANTS WITH THE OPERATIVE COMPLAINT
8. It cannot be disputed that Plaintiff improperly sought and obtained an order
entering default against Defendants in this action since Plaintiff failed to serve Defendants
with the operative Complaint in this action, which is the Amended Complaint filed by
Plaintiff on February 4, 2021.
9. Plaintiff misrepresented to this Court that Defendants had been served with the
operative Complaint in this action but it cannot be disputed that Defendants were never served
with the Amended Complaint as required by law in Florida, and in New York, such that
jurisdiction was never obtained over the Defendants to permit Plaintiff to seek or obtain default
against Defendants.
10. Plaintiff filed his Complaint in this action on November 23, 2020 but elected to
file an Amended Complaint on February 4, 2021 as of right.
11. In fact, Plaintiff confirmed in his Renewed Motion for Entry of Judicial Default
filed on May 20, 2021 that he failed to properly serve his Amended Complaint on the Defendants
since Plaintiff stated that he simply mailed a copy of the Amended Complaint to the Defendants
"7"
(Paragraph of Plaintiff's Renewed Motion for Entry of Judicial Default filed on May 20,
2021).
12. Notwithstanding Plaintiff's representation that he mailed the Amended Complaint
"E"
to the Defendants on February 4, 2021 (Exhibit to Plaintiff's Renewed Motion for Entry of
Judicial Default filed on May 20, 2021), none of the Defendants ever received any Amended
Complaint by mail from the Plaintiff or his counsel, and upon information, belief and
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investigation, Plaintiff and his counsel's representation that they served Defendants with
the Amended Complaint is knowingly false.
13. In any event, even if Plaintiff did in fact serve Defendants with the Amended
Complaint by mail on February 4, 2021 as alleged by Plaintiff and his counsel (which is untrue
since Plaintiff did no.1 in fact mail the Amended Complaint to Defendants at any point), such
service of the Amended Complaint via mail is improper and invalid service of process of the
Amended Complaint since default was not sought nor issued against any Defendants prior to
the time that the Amended Complaint was filed, nor was any pleading filed by Defendants prior
to the filing of the Amended Complaint.
14. Consequently, in order for Plaintiff to have effectuated proper service of process
of the Amended Complaint in this action, Plaintiff must have personally served the Defendants
with the Amended Complaint in order to obtain personal jurisdiction in this action.
15. However, since Plaintiff failed to serve Defendants with the Amended Complaint
in this action in any manner, and since the Amended Complaint is the operative Complaint that
Plaintiff has elected to proceed with in this action, it cannot be disputed that the Plaintiff had not
satisfied all of the prerequisites necessary to properly seek the issuance of any order granting
default against the Defendants and for that reason alone, the Order granting Judicial Default
issued by this Court on June 23, 2021 and entered by the Clerk on June 30, 2021 must be
vacated.
16. The record clearly reflects that this Court issued an Order granting Plaintiff an
entry of Judicial Default against Defendants on the Amended Complaint when in fact, Plaintiff
failed to ever serve Defendants with the Amended Complaint.
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17. Affidavits of Barry Dynkin and Benjamin Dynkin, which are annexed hereto as
Exhibit "1", confirm that they were never served with the original Complaint in this action, let
alone, and additionally, with the Amended Complaint.
IH. IN THE EVENT THAT THIS COURT DEEMS THAT THE AMENDED
COMPLAINT WAS PROPERLY SERVED, WHICH IT WAS NOT, THEN
SERVICE OF PROCESS SHOULD BE QUASHED AND AN EVIDENTIARY
HEARING SHOULD BE HELD TO PROVE THAT DEFENDANTS WERE
NEVER SERVED IN THIS ACTION
18. Even if this Court were to consider Plaintiff's improper service of the Amended
Complaint on Defendants via mail to be proper service, then service of process should be
quashed upon Plaintiff's production of his process server who allegedly served Defendants with
the originally filed Complaint at an evidentiary hearing to be scheduled before this Court to
prove that service of process in this action was proper.
19. It is respectfully submitted that Defendants have a right to test the veracity of
Plaintiff's process server who alleges that he served the original Complaint on the Defendants on
Defendants'
January 5, 2021 despite allegations that they were never served with such
Complaint.
20. The courts require strict construction of, and compliance with, the provisions of
statutes governing service of process. Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952 (Fla.
2001). A court cannot proceed in a matter until proper proof of valid service is made. See
Klosenski v. Flaherty, 116 So.2d 767 (Fla. 1959); and Re-Employment Servs. V. Nat'l Loan
Acquisitions Co., 969 So.2d 467 (Fla. 5th DCA 2007).
21. When a process server fails to strictly comply with these rules, service must be
quashed.
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22. If Plaintiff is claiming that Defendants were properly served with any form of a
Complaint in this matter, then Defendants should be given the opportunity to conduct an
evidentiary hearing to examine the process server and take his testimony to prove that the service
of process of the original Complaint was improper and thus ineffective for purposes of granting
the entry of default against Defendants.
23. Defendants respectfully submit, however, that even though the service of process
of Plaintiff's original Complaint is improper and invalid, it is moot in any event since Plaintiff
specifically elected to proceed with an Amended Complaint which he filed but failed to serve on
Defendants in any manner which could be construed as proper and valid service of the Amended
Complaint on Defendants.
24. It isrespectfully requested, therefore, that an evidentiary hearing be scheduled by
this Court in the event that this Court determines that the Plaintiff was not required to personally
serve the Defendants with the Amended Complaint as a necessary prerequisite to Plaintiff's
seeking and obtaining a default against Defendants.
IV. IF THIS COURT DETERMINES THAT DEFAULT WAS PROPERLY
GRANTED AGAINST DEFENDANTS, SUCH DEFAULT SHOULD BE
VACATED IN ITS ENTIRETY SINCE DEFENDANTS NEVER RECEIVED
NOTICE OF THE RENEWED MOTION FOR DEFAULT, AND THEREFORE
EXCUSABLE NEGLECT EXISTS AND DEFENDANTS ACTED DILIGENTLY
UPON FIRST LEARNING OF THE DEFAULT
25. Defendants respectfully submit that this Court's entry of default against
Defendants should be vacated in its entirety in the alternative event that this Court determines
that Plaintiff properly satisfied all pre-requisites to filing his Renewed Motion for Entry of
Judicial Default filed on May 20, 2021.
26. On May 5, 2021, Plaintiff filed a motion for judicial default.
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27. On May 20, 2021, this motion was denied.
28. On May 20, 2021, Plaintiff filed a renewed motion for judicial default.
29. On, or around, June 23, 2021, the court issued a judicial default for Plaintiff in
this matter.
30. Defendants were never notified by Plaintiff's counsel, Jonathan Davidoff, about
the Plaintiff s renewed motion for judicial default.
31. Defendants were never notified by Plaintiff's counsel that a hearing had been
scheduled for this renewed motion for judicial default.
32. As of June 23, 2021, there was no counsel of record for this matter, thus Plaintiff
had an obligation to ensure that Defendants were notified of the renewed motion and the hearing.
33. Despite Mr. Davidoff s certification, in Plaintiff's Renewed Motion for Entry of
Judicial Default filed on May 20, 2021, that he had mailed a copy of his renewed motion "via
USPS to Benjamin Dynkin and Barry Dynkin at 130 Cooper Drive, Great Neck, New York
11023,"
Defendants received no such mailing nor any other form of notice.
34. Defendants could not oppose Plaintiff s Renewed Motion for Entry of Judicial
Default filed on May 20, 2021 nor appear at the June 23, 2021 hearing on Plaintiff's Motion
since Plaintiffs were never informed that such hearing would be taking place, despite Mr.
Davidoff s certification of service.
35. The first and only notice Defendants ever received regarding Defendant's default
was by receipt of a copy of the Order granting Plaintiff's Motion which was sent by mail post
marked July 13, 2021. Defendants thereafter promptly sought the aid of counsel to look into how
and why Plaintiff obtained defaults against the Defendants without notice to the Defendants.
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36. Defendants were never properly served with a complaint in this matter as set forth
herein and were never served at all with a copy of the Amended Complaint, either by mail or
other form of service.
37. In fact, on April 6, 2021, Mr. Davidoff acknowledged by e-mail that Defendants
were not properly served in this matter and that they would be served "pursuant to the CPLR".
38. This Court denied Plaintiff's motion for judicial default on May 20, 2021.
Subsequent to his acknowledgment that Defendants were not properly served, Mr. Davidoff
misrepresented to this Court that Defendants had, in fact, been properly served. (see e.g. Dkt. No.
24).
39. Mr. Davidoff knew that these assertions were false as he was contradicting his
prior acknowledgment that Defendants had not been served and that he would have to pursue
service under New York's Civil Practice Law and Rules ("CPLR").
40. As proper service was never effectuated on Defendants, this matter was never
properly commenced, either by virtue of Plaintiff's failure to serve the initial Complaint on
Defendants or by Plaintiff's failure to serve the Amended Complaint at all.
41. Pursuant to Florida Rules of Civil Procedure, Rule 1.540 (b):
On motion and upon such terms as are just, the court may relieve a party or a party's legal
representative from a final judgment, decree, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
42. Under Florida law a trialcourt has broad authority under Rule 1.540(b)(1) to
vacate or set aside a default judgment based on mistake, inadvertence, surprise or excusable
neglect; indeed setting aside defaults and allowing trial on the merits is one of liberality.
Espinosa v. Racki, 324 So.2d 105 (Fla. 3d DCA 1975) ("The policy in Florida in setting aside
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defaults in order to permit a trial upon the merits is one of liberality and the facts of each case are
of singular importance in determining whether or not relief under RCP 1.540(b) should be
granted.")
"
43. A the party seeking to vacate the order must demonstrate [1] excusable neglect,
[2] a meritorious defense, and [3] due diligence in order for the trial court to vacate the default
judgment."
and the Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004) (citing Coquina Beach
Club Condo. AssI, Inc. v. Wagner, 813 So.2d 1061, 1063 (Fla. 2d DCA 2002))
44. Courts have applied a liberal standard to the question of excusable neglect,
permitting issues such as a calendar error (Travelers Insurance Co. v. Bryson, 341 So.2d 1013
(Fla. 4th DCA 1977) and clerical and secretarial mistakes (Associated Medical Institutions, Inc.
v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976); Stevens-Davis Co. v. Stock, 141 Fla. 714, 193
So. 745 (1940); Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla. 1977) to constitute excusable
neglect.
45. As set forth herein, Plaintiff's entry of default against Defendants should be
vacated since Plaintiff never served the Amended Complaint on Defendants whatsoever and
sought to obtain default on the original Complaint which was superseded by the Amended
Complaint.
46. However, even if this Court decides to excuse Plaintiff's failure to properly serve
the Defendants with the Complaint at any stage, it is respectfully submitted that the entry of
default against Defendants should be vacated since the instant matter represents a clear example
of excusable neglect because Defendants were never notified of Plaintiff's renewed motion for
entry of default.
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47. Defendants could not have attended the corresponding motion hearing on June 23,
2021 since Defendants were never notified that there was such a hearing or that a renewed
motion for default had been filed.
48. Also, Plaintiff's counsel has provided misrepresentations and false affidavits
pertaining to the whether and how service was ever effectuated in this case in the first place.
49. Upon receiving the July 13, 2021 mailing from this Court with its Order on
Judicial Default, Defendants have acted quickly and diligently to address the issue.
50. Granting this motion would in no way prejudice any party and would permit the
dispute to be decided on its merits, which is consistent with Florida's "long standing policy of
defaults."
liberality toward the vacating of North Shore Hosp., Inc. v. Barber, 143 So.2d 849
(Fla.1962)
51. This is particularly relevant in this matter where Defendants have numerous, very
strong meritorious defenses that are likely to succeed if considered on the merits. Should the
motion to set aside the default be granted, Plaintiff would not be prejudiced in any way. Only
through granting the motion can this Court adequately consider the claims on their merits.
52. Furthermore, without notice of the renewed motion for default judgment and
notice that a hearing on said motion was scheduled, any absence from such hearing must be
considered excusable.
V. THIS COURT LACKS PERSONAL JURISDICTION TO HEAR THIS MATTER.
53. Plaintiff claims that "this Court has jurisdiction... ... pursuant to Fla. Stat.
§48.193 because at all pertinent times [Defendants]: operated, conducted, engaged in, or
carried on a business venture in the State of Florida; committed a tortious act in the State
of Florida; caused injury to a person residing in the State of Florida by an act or omission
outside the state involving the solicitation or sale of services or products in the State of
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Florida; and/or breached a contract in the State of Florida by failing to perform acts
Florida."
required by the contract to be performed in the State of (Pl. Compl., Dkt. No. 12
¶ 5 and 6).
54. With the exception of a single conversation, which was part of a series of
numerous conversations contemplating a loan, all conversations, transactions, and other
events referred to by Plaintiff occurred in New York State.
55. Defendants Atlas Cybersecurity LLC and DACS Cybersecurity Holdings
"Company"
LLC (the or collectively the "Companies") are New York limited liability
companies.
Companies'
56. headquarters, primary base of operations, and primary office,
at all relevant times, was in Nassau County, New York.
57. Defendants have no paid employees or contractors, no office, no
operations, and no clients in the State of Florida.
58. No products, materials, or things processed, serviced, or manufactured by
any Defendant were used or consumed in the State of Florida.
59. Defendants carried out no meaningful business in the State of Florida.
60. Defendants have no other significant connections in or to or contacts with
the State of Florida.
61. Defendants Barry Dynkin and Benjamin Dynkin are and were, at all
relevant times, residents and citizens of the State of New York, with no property in or
other significant connections to the State of Florida.
62. The Operating Agreement of DACS Cybersecurity Holdings, LLC,
expressly provides:
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This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York, without giving effect to
any choice or conflict of law provision or rule (whether of the State of
New York or any jurisdiction).
63. Despite Plaintiff's conclusory claims to the contrary (see supra ¶ 29),
Plaintiff actually acknowledges that the principal place of business of Defendants Atlas
Cybersecurity LLC and DACS Cybersecurity Holdings LLC are in the State of New
York (Pl. Compl., Dkt. No. 12 ¶ 3 and 4).
64. Plaintiff makes no claim that Defendants operated, conducted, engaged in,
or carried on a business venture of any sort in the State of Florida because, in fact,
Defendants did not carry out any business in the State of Florida.
65. Plaintiff's claims in relation to jurisdiction are similar conclusory and
demonstrably baseless.
66. As a result, Florida lacks jurisdiction over all four Defendants and all of
the matters alleged in Plaintiff's complaint.
67. Plaintiff claims "[v]enue is proper before this Court because a substantial
part of the events, acts, and omissions giving rise to the claims alleged herein occurred in
County"
Palm Beach County, Florida, and the Plaintiff was harmed in Palm Beach (Pl.
Compl., Dkt. No. 12 ¶ 7).
68. This is demonstrably false because, as Plaintiff acknowledges, with the
exception of a single, unimportant conversation, all events, acts, and omissions related to
Plaintiff's claims took place in the State of New York.
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69. This matter may only properly be brought before the Supreme Court of the
State of New York.
70. Thus, Defendants have numerous meritorious defenses which should be
adjudicated by this Court rather than imposing the penalty of default on the Defendants,
which is an undeserved reward to Plaintiff for having disregarded his obligation to
properly effectuate service of the Amended Complaint on Defendants, which never
occurred.
VI. DEFENDANTS WERE NEVER SERVED IN THIS ACTION
71. No resident of 130 Cooper Drive, Great Neck, NY 11023 was served related to
this matter on January 5, 2021 or on any other day.
72. Upon information and belief, even if Plaintiff s Process Server John Savage
attempted to serve process of the original Complaint, which is no longer the operative
Complaint, on the Defendants at 130 Cooper Drive, Great Neck, New York, valid service was
never effectuated since the Defendants were never served at all.
73. On April 8, 2021, Plaintiff s counsel, Jonathan Davidoff acknowledged by e-mail
that Defendants had not been served, stating that "service shall be effectuated pursuant to the
CPLR".
74. On January 6, 2021, Plaintiff s process server John Savage swore in his affidavit
of service of the originally filed Complaint, which is no longer the operative Complaint,
5'9" 6'0"
asserting that he served Benjamin Dynkin as an individual who was between and tall,
weighed over 200 lbs., and was between 30 and 45 years old.
6'5"
75. Benjamin Dynkin is tall,weighs over 350 lbs., and, at the time, was 26
years old.
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76. Defendants submit that John Savage failed to serve any Defendant, or individual
who would be authorized to accept service on behalf of any of the Defendants, on January 5,
2021 and filed a false affidavit representing that such service occurred.
77. As a result, it is imperative that Defendants be provided with the opportunity to
participate in an evidentiary where Plaintiff's process server will be required to be produced and
cross examined by the Defendants.
78. In either case, the amended affidavit of John Savage, is false and none of the
Defendants have been served on January 5, 2021 or on any subsequent date.
VII. DEFENDANTS HAVE NUMEROUS MERITORIOUS DEFENSES
79. As set forth herein, Defendants have not been served in this matter. As more than
120 days have passed since the initial filing of this case, as per Florida Rule of Civil Procedure
1.070 (j),this matter must be dismissed without prejudice.
80. Defendants were never served with the Complaint and were not only not served
with the Amended Complaint, but Plaintiff never even filed any affidavits of service to prove
that Plaintiff attempted to have Defendants personally served with the Amended Complaint, as
required.
81. It is also submitted that this court lacks personal jurisdiction over Defendants for
the reasons set forth herein.
82. Lacking personal jurisdiction over the Defendants and the matters alleged, the
Court must dismiss the Plaintiff's case.
83. In addition to the above defenses, Defendants intend to refute and defend against
each of Plaintiff's claims on the merits.
84. Defendants have documentation conclusively demonstrating the fallacy of
numerous claims made by Plaintiff in his complaint.
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Loan"
85. In his Amended Complaint, Plaintiff alleges that the "Business of
$150,000.00 is personally guaranteed by Defendants Barry Dynkin and Benjamin Dynkin.
86. Plaintiff acknowledges that the only writing pertaining to the loan was
Defendant's e-mail of February 6, 2020.
87. In said e-mail, Defendants recounted their understanding of the personal guaranty
that had been contemplated in verbal discussions.
88. Plaintiff's agent responded to said e-mail, expressly rejecting it and demanding
interest and other protections that had not been contemplated or discussed in any of the
numerous prior conversations.
89. No further writings were exchanged.
90. Plaintiff and Defendant concur that the e-mail of February 6, 2020 is not a valid
personal guaranty.
91. The Florida Statute of Frauds (725.01) requires that any personal guaranty for an
thereof"
"agreement that is not to be performed within the space of 1 year from the making needs
a "note or memorandum... ...in writing and signed by the party to be charged therewith or by
authorized"
some other person by her or him thereunto lawfully in order to be enforceable.
92. As both Parties agree that the e-mail of February 6, 2020 is not a valid personal
guaranty, there is no valid writing and, thus, under 725.01, there is no enforceable personal
guaranty.
93. Even if there were a personal guaranty, no monies under any guaranty would be
due.
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94. In Plaintiff's agent's response to the e-mail of February 6, 2020, the agent
expresses acknowledges that monies are only due to Plaintiff once Atlas is profitable, when she
requests that he be given priority repayment upon profitability.
95. This constitutes an express acknowledgement of the fact that the loan is governed
by the same repayment terms as the initial loan of $500,000.00, in terms of its repayment only
being triggered upon Atlas reaching profitability.
96. The putative personal guaranty expressly indicates that it would only come into
down"
effect ifand when "Atlas... ...ceases operations or closes and that the money would only
be due five years subsequent to that point.
97. Atlas is still actively operating, thus any putative personal guaranty would not be
effective for at least five years.
98. Plaintiff claims that Defendants made false statements to induce Plaintiff to make
a loan.
99. Plaintiff and/or his agents were involved in every single discussion about the
Atlas'
development and current status of business.
100. They were painstakingly and thoroughly informed, in great detail, about every
nuance and development in the businesses progress.
101. Defendants spent numerous hours on a daily basis ensuring that Plaintiff and his
agents were fully and thoroughly informed as to every development in the business, in real time.
102. No statement was made by Defendants indicating that "Atlas had guaranteed
clients"
or that any other concrete business had been developed.
103. No statement was made by Defendants that Atlas had secured any clients or that
any speci
Preview
FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF Filing DOC. # NO. 133250853 114 E-Filed 08/23/2021 11:58:48 PM RECEIVED NYSCEF: 12/01/2022 15" W THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT W AND FOR PALM BEACH COUNTY, FLORIDA C1VIL DIVISION HON. HOWARD K. COATES CASE NO.: 50-2020-CA-012935 BEN-ZION ALCALAY, Plaintiff, v. ATLAS CYBERSECURITY, LLC, a New York Limited Liability Company, DACS CYBERSECURITY HOLDINGS, LLC, a New York Limited Liability Company, BARRY DYNKM and BENJAMW DYNKM, Defendants. DEFENDANTS' MOTION TO SET ASIDE JUDICIAL DEFAULT, TO DISMISS FOR HAVING FILED A DUPLICATIVE ACTION, AND, IN THE ALTERNATIVE, TO QUASH SERVICE OF PROCESS AND SET AN EVIDENTIARY HEARING TO CONFIRM THAT PROCESS WAS NOT SERVED COMES NOW, Defendants Atlas Cybersecurity LLC, DACS Cybersecurity Holdings LLC, Barry Dynkin, and Benjamin Dynkin ("Defendants"), by and through their undersigned counsel and pursuant to Rule 1.540 of the Florida Rules of Civil Procedure, hereby request this Court to set aside its Order granting Judicial Default and to Dismiss for the reasons set forth herein. I. THIS ACTION SHOULD BE DISMISSED SINCE PLAINTIFF IMPROPERLY FILED TWO (2) ESSENTIALLY IDENTICAL ACTIONS BEFORE THIS COURT AND DEFENDANTS HAVE ANSWERED THE LATER-FILED ACTION 1. It is respectfully submitted that this action should be dismissed outright since Plaintiff filed a superseding action after the commencement of this action, against the same ** *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 08/23/2021 11:58:48 PM FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 Defendants, for relief which is identical to the causes of action and relief sought in much of this action (hereinafter referred to as "Plaintiff's Duplicative Action"). 2. Plaintiff's Duplicative Action is before this same Court under Case No. 50-2021- CA-000278 which was commenced with the filing of the Complaint on January 7, 2021, nearly two (2) months after this instant action was commenced with the filing of the Complaint on November 23, 2020. 3. Accordingly, since Defendants consent to proceeding with the superseding Plaintiff's Duplicative Action and have already filed an Answer in Plaintiff's Duplicative Action, this Court should dismiss this instant action has having been superseded by Plaintiff's Duplicative Action. 4. It should be clear to this Court that Plaintiff should not have the ability to file multiple actions against the same Defendants alleging causes of action and seeking relief which are common to both actions. 5. It isunduly burdensome on the Defendants to have to litigate what are essentially two (2) identical matters, and it iswholly improper for Plaintiff to have filed two (2) essentially identical actions let alone for Plaintiff to be entitled to proceed on both of them simultaneously, which is prejudicial to Defendants. 6. It is respectfully submitted that Plaintiff has brought two (2) essentially identical actions against Defendants solely to harass Defendants and to cause Defendants to incur unnecessary legal fees and costs in defending two (2) essentially identical actions. 7. This Court should not condone such conduct and in light of the fact that Defendants have filed an Answer to the Corrected Complaint filed in Plaintiff's Duplicative Action, this instant action should be dismissed forthwith. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 II. PLAINTIFF FAILED TO SERVE DEFENDANTS WITH THE OPERATIVE COMPLAINT AND ACCORDINGLY, MISLED THIS COURT TO ENTER DEFAULT AGAINST DEFENDANTS WHEN IN FACT PLAINTIFF FAILED TO SERVE DEFENDANTS WITH THE OPERATIVE COMPLAINT 8. It cannot be disputed that Plaintiff improperly sought and obtained an order entering default against Defendants in this action since Plaintiff failed to serve Defendants with the operative Complaint in this action, which is the Amended Complaint filed by Plaintiff on February 4, 2021. 9. Plaintiff misrepresented to this Court that Defendants had been served with the operative Complaint in this action but it cannot be disputed that Defendants were never served with the Amended Complaint as required by law in Florida, and in New York, such that jurisdiction was never obtained over the Defendants to permit Plaintiff to seek or obtain default against Defendants. 10. Plaintiff filed his Complaint in this action on November 23, 2020 but elected to file an Amended Complaint on February 4, 2021 as of right. 11. In fact, Plaintiff confirmed in his Renewed Motion for Entry of Judicial Default filed on May 20, 2021 that he failed to properly serve his Amended Complaint on the Defendants since Plaintiff stated that he simply mailed a copy of the Amended Complaint to the Defendants "7" (Paragraph of Plaintiff's Renewed Motion for Entry of Judicial Default filed on May 20, 2021). 12. Notwithstanding Plaintiff's representation that he mailed the Amended Complaint "E" to the Defendants on February 4, 2021 (Exhibit to Plaintiff's Renewed Motion for Entry of Judicial Default filed on May 20, 2021), none of the Defendants ever received any Amended Complaint by mail from the Plaintiff or his counsel, and upon information, belief and FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 investigation, Plaintiff and his counsel's representation that they served Defendants with the Amended Complaint is knowingly false. 13. In any event, even if Plaintiff did in fact serve Defendants with the Amended Complaint by mail on February 4, 2021 as alleged by Plaintiff and his counsel (which is untrue since Plaintiff did no.1 in fact mail the Amended Complaint to Defendants at any point), such service of the Amended Complaint via mail is improper and invalid service of process of the Amended Complaint since default was not sought nor issued against any Defendants prior to the time that the Amended Complaint was filed, nor was any pleading filed by Defendants prior to the filing of the Amended Complaint. 14. Consequently, in order for Plaintiff to have effectuated proper service of process of the Amended Complaint in this action, Plaintiff must have personally served the Defendants with the Amended Complaint in order to obtain personal jurisdiction in this action. 15. However, since Plaintiff failed to serve Defendants with the Amended Complaint in this action in any manner, and since the Amended Complaint is the operative Complaint that Plaintiff has elected to proceed with in this action, it cannot be disputed that the Plaintiff had not satisfied all of the prerequisites necessary to properly seek the issuance of any order granting default against the Defendants and for that reason alone, the Order granting Judicial Default issued by this Court on June 23, 2021 and entered by the Clerk on June 30, 2021 must be vacated. 16. The record clearly reflects that this Court issued an Order granting Plaintiff an entry of Judicial Default against Defendants on the Amended Complaint when in fact, Plaintiff failed to ever serve Defendants with the Amended Complaint. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 17. Affidavits of Barry Dynkin and Benjamin Dynkin, which are annexed hereto as Exhibit "1", confirm that they were never served with the original Complaint in this action, let alone, and additionally, with the Amended Complaint. IH. IN THE EVENT THAT THIS COURT DEEMS THAT THE AMENDED COMPLAINT WAS PROPERLY SERVED, WHICH IT WAS NOT, THEN SERVICE OF PROCESS SHOULD BE QUASHED AND AN EVIDENTIARY HEARING SHOULD BE HELD TO PROVE THAT DEFENDANTS WERE NEVER SERVED IN THIS ACTION 18. Even if this Court were to consider Plaintiff's improper service of the Amended Complaint on Defendants via mail to be proper service, then service of process should be quashed upon Plaintiff's production of his process server who allegedly served Defendants with the originally filed Complaint at an evidentiary hearing to be scheduled before this Court to prove that service of process in this action was proper. 19. It is respectfully submitted that Defendants have a right to test the veracity of Plaintiff's process server who alleges that he served the original Complaint on the Defendants on Defendants' January 5, 2021 despite allegations that they were never served with such Complaint. 20. The courts require strict construction of, and compliance with, the provisions of statutes governing service of process. Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952 (Fla. 2001). A court cannot proceed in a matter until proper proof of valid service is made. See Klosenski v. Flaherty, 116 So.2d 767 (Fla. 1959); and Re-Employment Servs. V. Nat'l Loan Acquisitions Co., 969 So.2d 467 (Fla. 5th DCA 2007). 21. When a process server fails to strictly comply with these rules, service must be quashed. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 22. If Plaintiff is claiming that Defendants were properly served with any form of a Complaint in this matter, then Defendants should be given the opportunity to conduct an evidentiary hearing to examine the process server and take his testimony to prove that the service of process of the original Complaint was improper and thus ineffective for purposes of granting the entry of default against Defendants. 23. Defendants respectfully submit, however, that even though the service of process of Plaintiff's original Complaint is improper and invalid, it is moot in any event since Plaintiff specifically elected to proceed with an Amended Complaint which he filed but failed to serve on Defendants in any manner which could be construed as proper and valid service of the Amended Complaint on Defendants. 24. It isrespectfully requested, therefore, that an evidentiary hearing be scheduled by this Court in the event that this Court determines that the Plaintiff was not required to personally serve the Defendants with the Amended Complaint as a necessary prerequisite to Plaintiff's seeking and obtaining a default against Defendants. IV. IF THIS COURT DETERMINES THAT DEFAULT WAS PROPERLY GRANTED AGAINST DEFENDANTS, SUCH DEFAULT SHOULD BE VACATED IN ITS ENTIRETY SINCE DEFENDANTS NEVER RECEIVED NOTICE OF THE RENEWED MOTION FOR DEFAULT, AND THEREFORE EXCUSABLE NEGLECT EXISTS AND DEFENDANTS ACTED DILIGENTLY UPON FIRST LEARNING OF THE DEFAULT 25. Defendants respectfully submit that this Court's entry of default against Defendants should be vacated in its entirety in the alternative event that this Court determines that Plaintiff properly satisfied all pre-requisites to filing his Renewed Motion for Entry of Judicial Default filed on May 20, 2021. 26. On May 5, 2021, Plaintiff filed a motion for judicial default. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 27. On May 20, 2021, this motion was denied. 28. On May 20, 2021, Plaintiff filed a renewed motion for judicial default. 29. On, or around, June 23, 2021, the court issued a judicial default for Plaintiff in this matter. 30. Defendants were never notified by Plaintiff's counsel, Jonathan Davidoff, about the Plaintiff s renewed motion for judicial default. 31. Defendants were never notified by Plaintiff's counsel that a hearing had been scheduled for this renewed motion for judicial default. 32. As of June 23, 2021, there was no counsel of record for this matter, thus Plaintiff had an obligation to ensure that Defendants were notified of the renewed motion and the hearing. 33. Despite Mr. Davidoff s certification, in Plaintiff's Renewed Motion for Entry of Judicial Default filed on May 20, 2021, that he had mailed a copy of his renewed motion "via USPS to Benjamin Dynkin and Barry Dynkin at 130 Cooper Drive, Great Neck, New York 11023," Defendants received no such mailing nor any other form of notice. 34. Defendants could not oppose Plaintiff s Renewed Motion for Entry of Judicial Default filed on May 20, 2021 nor appear at the June 23, 2021 hearing on Plaintiff's Motion since Plaintiffs were never informed that such hearing would be taking place, despite Mr. Davidoff s certification of service. 35. The first and only notice Defendants ever received regarding Defendant's default was by receipt of a copy of the Order granting Plaintiff's Motion which was sent by mail post marked July 13, 2021. Defendants thereafter promptly sought the aid of counsel to look into how and why Plaintiff obtained defaults against the Defendants without notice to the Defendants. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 36. Defendants were never properly served with a complaint in this matter as set forth herein and were never served at all with a copy of the Amended Complaint, either by mail or other form of service. 37. In fact, on April 6, 2021, Mr. Davidoff acknowledged by e-mail that Defendants were not properly served in this matter and that they would be served "pursuant to the CPLR". 38. This Court denied Plaintiff's motion for judicial default on May 20, 2021. Subsequent to his acknowledgment that Defendants were not properly served, Mr. Davidoff misrepresented to this Court that Defendants had, in fact, been properly served. (see e.g. Dkt. No. 24). 39. Mr. Davidoff knew that these assertions were false as he was contradicting his prior acknowledgment that Defendants had not been served and that he would have to pursue service under New York's Civil Practice Law and Rules ("CPLR"). 40. As proper service was never effectuated on Defendants, this matter was never properly commenced, either by virtue of Plaintiff's failure to serve the initial Complaint on Defendants or by Plaintiff's failure to serve the Amended Complaint at all. 41. Pursuant to Florida Rules of Civil Procedure, Rule 1.540 (b): On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; 42. Under Florida law a trialcourt has broad authority under Rule 1.540(b)(1) to vacate or set aside a default judgment based on mistake, inadvertence, surprise or excusable neglect; indeed setting aside defaults and allowing trial on the merits is one of liberality. Espinosa v. Racki, 324 So.2d 105 (Fla. 3d DCA 1975) ("The policy in Florida in setting aside FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 defaults in order to permit a trial upon the merits is one of liberality and the facts of each case are of singular importance in determining whether or not relief under RCP 1.540(b) should be granted.") " 43. A the party seeking to vacate the order must demonstrate [1] excusable neglect, [2] a meritorious defense, and [3] due diligence in order for the trial court to vacate the default judgment." and the Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004) (citing Coquina Beach Club Condo. AssI, Inc. v. Wagner, 813 So.2d 1061, 1063 (Fla. 2d DCA 2002)) 44. Courts have applied a liberal standard to the question of excusable neglect, permitting issues such as a calendar error (Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977) and clerical and secretarial mistakes (Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976); Stevens-Davis Co. v. Stock, 141 Fla. 714, 193 So. 745 (1940); Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla. 1977) to constitute excusable neglect. 45. As set forth herein, Plaintiff's entry of default against Defendants should be vacated since Plaintiff never served the Amended Complaint on Defendants whatsoever and sought to obtain default on the original Complaint which was superseded by the Amended Complaint. 46. However, even if this Court decides to excuse Plaintiff's failure to properly serve the Defendants with the Complaint at any stage, it is respectfully submitted that the entry of default against Defendants should be vacated since the instant matter represents a clear example of excusable neglect because Defendants were never notified of Plaintiff's renewed motion for entry of default. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 47. Defendants could not have attended the corresponding motion hearing on June 23, 2021 since Defendants were never notified that there was such a hearing or that a renewed motion for default had been filed. 48. Also, Plaintiff's counsel has provided misrepresentations and false affidavits pertaining to the whether and how service was ever effectuated in this case in the first place. 49. Upon receiving the July 13, 2021 mailing from this Court with its Order on Judicial Default, Defendants have acted quickly and diligently to address the issue. 50. Granting this motion would in no way prejudice any party and would permit the dispute to be decided on its merits, which is consistent with Florida's "long standing policy of defaults." liberality toward the vacating of North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962) 51. This is particularly relevant in this matter where Defendants have numerous, very strong meritorious defenses that are likely to succeed if considered on the merits. Should the motion to set aside the default be granted, Plaintiff would not be prejudiced in any way. Only through granting the motion can this Court adequately consider the claims on their merits. 52. Furthermore, without notice of the renewed motion for default judgment and notice that a hearing on said motion was scheduled, any absence from such hearing must be considered excusable. V. THIS COURT LACKS PERSONAL JURISDICTION TO HEAR THIS MATTER. 53. Plaintiff claims that "this Court has jurisdiction... ... pursuant to Fla. Stat. §48.193 because at all pertinent times [Defendants]: operated, conducted, engaged in, or carried on a business venture in the State of Florida; committed a tortious act in the State of Florida; caused injury to a person residing in the State of Florida by an act or omission outside the state involving the solicitation or sale of services or products in the State of FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 Florida; and/or breached a contract in the State of Florida by failing to perform acts Florida." required by the contract to be performed in the State of (Pl. Compl., Dkt. No. 12 ¶ 5 and 6). 54. With the exception of a single conversation, which was part of a series of numerous conversations contemplating a loan, all conversations, transactions, and other events referred to by Plaintiff occurred in New York State. 55. Defendants Atlas Cybersecurity LLC and DACS Cybersecurity Holdings "Company" LLC (the or collectively the "Companies") are New York limited liability companies. Companies' 56. headquarters, primary base of operations, and primary office, at all relevant times, was in Nassau County, New York. 57. Defendants have no paid employees or contractors, no office, no operations, and no clients in the State of Florida. 58. No products, materials, or things processed, serviced, or manufactured by any Defendant were used or consumed in the State of Florida. 59. Defendants carried out no meaningful business in the State of Florida. 60. Defendants have no other significant connections in or to or contacts with the State of Florida. 61. Defendants Barry Dynkin and Benjamin Dynkin are and were, at all relevant times, residents and citizens of the State of New York, with no property in or other significant connections to the State of Florida. 62. The Operating Agreement of DACS Cybersecurity Holdings, LLC, expressly provides: FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any jurisdiction). 63. Despite Plaintiff's conclusory claims to the contrary (see supra ¶ 29), Plaintiff actually acknowledges that the principal place of business of Defendants Atlas Cybersecurity LLC and DACS Cybersecurity Holdings LLC are in the State of New York (Pl. Compl., Dkt. No. 12 ¶ 3 and 4). 64. Plaintiff makes no claim that Defendants operated, conducted, engaged in, or carried on a business venture of any sort in the State of Florida because, in fact, Defendants did not carry out any business in the State of Florida. 65. Plaintiff's claims in relation to jurisdiction are similar conclusory and demonstrably baseless. 66. As a result, Florida lacks jurisdiction over all four Defendants and all of the matters alleged in Plaintiff's complaint. 67. Plaintiff claims "[v]enue is proper before this Court because a substantial part of the events, acts, and omissions giving rise to the claims alleged herein occurred in County" Palm Beach County, Florida, and the Plaintiff was harmed in Palm Beach (Pl. Compl., Dkt. No. 12 ¶ 7). 68. This is demonstrably false because, as Plaintiff acknowledges, with the exception of a single, unimportant conversation, all events, acts, and omissions related to Plaintiff's claims took place in the State of New York. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 69. This matter may only properly be brought before the Supreme Court of the State of New York. 70. Thus, Defendants have numerous meritorious defenses which should be adjudicated by this Court rather than imposing the penalty of default on the Defendants, which is an undeserved reward to Plaintiff for having disregarded his obligation to properly effectuate service of the Amended Complaint on Defendants, which never occurred. VI. DEFENDANTS WERE NEVER SERVED IN THIS ACTION 71. No resident of 130 Cooper Drive, Great Neck, NY 11023 was served related to this matter on January 5, 2021 or on any other day. 72. Upon information and belief, even if Plaintiff s Process Server John Savage attempted to serve process of the original Complaint, which is no longer the operative Complaint, on the Defendants at 130 Cooper Drive, Great Neck, New York, valid service was never effectuated since the Defendants were never served at all. 73. On April 8, 2021, Plaintiff s counsel, Jonathan Davidoff acknowledged by e-mail that Defendants had not been served, stating that "service shall be effectuated pursuant to the CPLR". 74. On January 6, 2021, Plaintiff s process server John Savage swore in his affidavit of service of the originally filed Complaint, which is no longer the operative Complaint, 5'9" 6'0" asserting that he served Benjamin Dynkin as an individual who was between and tall, weighed over 200 lbs., and was between 30 and 45 years old. 6'5" 75. Benjamin Dynkin is tall,weighs over 350 lbs., and, at the time, was 26 years old. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 76. Defendants submit that John Savage failed to serve any Defendant, or individual who would be authorized to accept service on behalf of any of the Defendants, on January 5, 2021 and filed a false affidavit representing that such service occurred. 77. As a result, it is imperative that Defendants be provided with the opportunity to participate in an evidentiary where Plaintiff's process server will be required to be produced and cross examined by the Defendants. 78. In either case, the amended affidavit of John Savage, is false and none of the Defendants have been served on January 5, 2021 or on any subsequent date. VII. DEFENDANTS HAVE NUMEROUS MERITORIOUS DEFENSES 79. As set forth herein, Defendants have not been served in this matter. As more than 120 days have passed since the initial filing of this case, as per Florida Rule of Civil Procedure 1.070 (j),this matter must be dismissed without prejudice. 80. Defendants were never served with the Complaint and were not only not served with the Amended Complaint, but Plaintiff never even filed any affidavits of service to prove that Plaintiff attempted to have Defendants personally served with the Amended Complaint, as required. 81. It is also submitted that this court lacks personal jurisdiction over Defendants for the reasons set forth herein. 82. Lacking personal jurisdiction over the Defendants and the matters alleged, the Court must dismiss the Plaintiff's case. 83. In addition to the above defenses, Defendants intend to refute and defend against each of Plaintiff's claims on the merits. 84. Defendants have documentation conclusively demonstrating the fallacy of numerous claims made by Plaintiff in his complaint. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 Loan" 85. In his Amended Complaint, Plaintiff alleges that the "Business of $150,000.00 is personally guaranteed by Defendants Barry Dynkin and Benjamin Dynkin. 86. Plaintiff acknowledges that the only writing pertaining to the loan was Defendant's e-mail of February 6, 2020. 87. In said e-mail, Defendants recounted their understanding of the personal guaranty that had been contemplated in verbal discussions. 88. Plaintiff's agent responded to said e-mail, expressly rejecting it and demanding interest and other protections that had not been contemplated or discussed in any of the numerous prior conversations. 89. No further writings were exchanged. 90. Plaintiff and Defendant concur that the e-mail of February 6, 2020 is not a valid personal guaranty. 91. The Florida Statute of Frauds (725.01) requires that any personal guaranty for an thereof" "agreement that is not to be performed within the space of 1 year from the making needs a "note or memorandum... ...in writing and signed by the party to be charged therewith or by authorized" some other person by her or him thereunto lawfully in order to be enforceable. 92. As both Parties agree that the e-mail of February 6, 2020 is not a valid personal guaranty, there is no valid writing and, thus, under 725.01, there is no enforceable personal guaranty. 93. Even if there were a personal guaranty, no monies under any guaranty would be due. FILED: NASSAU COUNTY CLERK 12/01/2022 11:44 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 12/01/2022 94. In Plaintiff's agent's response to the e-mail of February 6, 2020, the agent expresses acknowledges that monies are only due to Plaintiff once Atlas is profitable, when she requests that he be given priority repayment upon profitability. 95. This constitutes an express acknowledgement of the fact that the loan is governed by the same repayment terms as the initial loan of $500,000.00, in terms of its repayment only being triggered upon Atlas reaching profitability. 96. The putative personal guaranty expressly indicates that it would only come into down" effect ifand when "Atlas... ...ceases operations or closes and that the money would only be due five years subsequent to that point. 97. Atlas is still actively operating, thus any putative personal guaranty would not be effective for at least five years. 98. Plaintiff claims that Defendants made false statements to induce Plaintiff to make a loan. 99. Plaintiff and/or his agents were involved in every single discussion about the Atlas' development and current status of business. 100. They were painstakingly and thoroughly informed, in great detail, about every nuance and development in the businesses progress. 101. Defendants spent numerous hours on a daily basis ensuring that Plaintiff and his agents were fully and thoroughly informed as to every development in the business, in real time. 102. No statement was made by Defendants indicating that "Atlas had guaranteed clients" or that any other concrete business had been developed. 103. No statement was made by Defendants that Atlas had secured any clients or that any speci