Preview
FILED: MONROE COUNTY CLERK 07/10/2023 12:33 AM INDEX NO. E2023006654
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/10/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3488872
Book Page CIVIL
Return To: No. Pages: 5
ARIEL BOUSKILA
80 Broad St Instrument: EXHIBIT(S)
Suite 3303
New York, NY 10004 Control #: 202307100476
Index #: E2023006654
Date: 07/10/2023
EBF HOLDINGS, LLC Time: 10:39:50 AM
JULIO CESAR LONDONO
LONDONO, JULIO CESAR
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202307100476 Index #
INDEX
INDEX : E2023006654
NO.
NO. E2023006654
E2022-1778
FILED: SULLIVAN
MONROE COUNTY
COUNTY
CLERK
CLERK
07/10/2023
05/09/2023
12:33
01:12
AMPM
NYSCEF DOC. NO. 55
69 RECEIVED NYSCEF: 07/10/2023
05/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SULLIVAN
----------------------------------------------------------------------X
KALAMATA CAPITAL GROUP, LLC, Index # E2022-1778
Plaintiff,
-against- Decision & Order
Motion 2
A PLUS REMODELING AND RESTORATION, LLC,
D/B/A A+ REMODELING AND RESTORATION, and
TYLER JAY KIVI,
Defendants.
----------------------------------------------------------------------X
Appearances: Ariel Bouskila, Esq. Dominick R. Dale, Esq.
Berkovitch & Bouskila, PLLC Law Office of Dominick Dale, Esq.
80 Broad Street, Suite 3303 7002 Nansen Street
New York, NY 10004 Forest Hills, NY 11375
For Plaintiff For Defendants
Papers Considered: NYSCEF Filings Numbered 1 to 57
Present: Galligan, J.
This action stems from a contract pursuant to which plaintiff alleges it purchased $87,000 in
future receivables of defendant A Plus Remodeling and Restoration, LLC d/b/a A+ Remodeling and
Restoration (“A Plus”), guaranteed by defendant Tyler Jay Kivi, in exchange for $57,301 in net funding,
contemplated, at the time of the execution of the contract, to be remitted to plaintiff via weekly
withdrawals of $2,417 from the bank account of defendant A Plus. By complaint, plaintiff alleges that
defendant A Plus remitted $12,085 to plaintiff and “ceased remitting” receivables thereafter. Defendants
have answered and entered various denials and proffered defenses. The court (Bryant, J.) thereafter
denied plaintiff’s motion to compel discovery and defendants’ cross-motion to compel a deposition of
plaintiff.
Defendants now move for a change of venue pursuant to Section 510(3) of New York’s Civil
Practice Law and Rules, and for an order extending discovery deadlines pursuant to Section 2004
thereof.1 Plaintiff opposes the motion.
In support of their motion, defendants argue that travel time to Monticello, New York, from New
York, New York, is unduly burdensome upon the parties and would prevent counsel for defendants from
making personal appearances in court;2 that the court system in Sullivan County has been unduly
burdened with cases brought by plaintiff and other merchant cash advance companies; that the forum
1
Defendants are situate in the State of Texas.
2
While defendants, by their papers, allege travel time of “more than a 7 hour drive” between New York City and Monticello,
New York, defendants’ Exhibit A demonstrates an estimated travel time, by car, of less than two hours.
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202307100476 IndexNO.
INDEX
INDEX #: E2023006654
NO. E2023006654
E2022-1778
FILED: SULLIVAN
MONROE COUNTY
COUNTY
CLERK
CLERK
07/10/2023
05/09/2023
12:33
01:12
AMPM
NYSCEF DOC. NO. 55
69 RECEIVED NYSCEF: 07/10/2023
05/03/2023
selection clause of the contract at issue is unreasonable, unjust and contrary to public policy; and that
plaintiff would suffer no prejudice were this matter transferred to New York County.3
“Subject to the provisions of subdivision two of section five hundred ten and section five
hundred fourteen of [the Civil Practice Law and Rules], written agreement fixing place of trial, made
before an action is commenced, shall be enforced upon a motion for change of place of trial,” and “the
place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is
changed to another county by order upon motion, or by consent as provided in subdivision (b) of rule
511.” NY CPLR §§ 501, 509.4 In certain circumstances, a court may “change the place of trial of an
action where (1) the county designated for that purpose is not a proper county; or (2) there is reason to
believe that an impartial trial cannot be had in the proper county; or (3) the convenience of material
witnesses and the ends of justice will be promoted by the change.” NY CPLR § 510.
The contract at issue contains the following provision:
This Agreement, Security Agreement and Guaranty of Performance, and
any and all addendums, attachments, exhibits and other documents relating
to this Agreement shall by 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 New York (the
“Acceptable Forums”). Seller and Guarantor(s) agree that the Acceptable
Forums are convenient and submit to the jurisdiction of the Acceptable
Forums and waive any and all objections to jurisdiction or venue. If such
proceeding be initiated in any other forum, Seller and Guarantor(s) waive
any right to oppose any motion or application made by Purchaser to transfer
such proceeding to an Acceptable Forum.
The Guarantor Acknowledgment section of the contract further provides:
This Guaranty of Performance 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 New York, and
guarantor agrees that the forum is convenient, submits to its jurisdiction and
waives any and all objections to jurisdiction or venue. If such proceeding
be initiated in any other forum, guarantor waives any right to oppose any
3
For the reasons set forth herein, because the venue clause of the instant contract is enforceable and is neither unreasonable,
unjust nor contrary to public policy, defendants’ remaining arguments must be rejected as the court is without authority to
rest a venue change determination thereupon.
4
Thus, if valid, a contractual provision as to venue overrides the residency provisions of Section 503; moreover, in such a
case, venue may not be changed by the court unless there is reason to believe an impartial trial could not be held where the
action was brought, even if such court determines the county designated is not proper and/or the convenience of material
witnesses and the ends of justice would be promoted by a change in venue.
2 of 4
202307100476 IndexNO.
INDEX
INDEX #: E2023006654
NO. E2023006654
E2022-1778
FILED: SULLIVAN
MONROE COUNTY
COUNTY
CLERK
CLERK
07/10/2023
05/09/2023
12:33
01:12
AMPM
NYSCEF DOC. NO. 55
69 RECEIVED NYSCEF: 07/10/2023
05/03/2023
motion or application made by purchaser to transfer such proceeding to New
York.
Waivers of objections to venue have been enforced in similar situations and others. See, e.g., Merchant
Cash & Capital, LLC v Portland Wholesale Jewelry, LLC, 2017 NY Slip Op 31651(U) [Sup Ct Nassau
Co 2017]; Bizfund LLC v Holland & Sliger Steel, LLC, 2021 NY Slip Op 50504(U) [Sup Ct Kings Co
2021]; Tatko Stone Prods., Inc. v Davis-Giovinzazzo Constr. Co., Inc., 65 AD3d 778 [3d Dept 2009].
“A contractual forum selection clause is prima facie valid and enforceable unless it is shown by
the challenging party to be unreasonable, unjust, in contravention of public policy, or invalid due to
fraud or overreaching,5 or it is shown that a trial in the selected forum would be so gravely difficult that
the challenging party would, for all practical purposes, be deprived of its day in court.” Merchant Cash
& Capital, LLC v Laulainen, 55 Misc3d 349, 350 [Sup Ct Nassau Co 2017],6 citing Molino v Sagamore,
105 AD3d 922 [2d Dept 2013]; accord, Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329, 1330
[2d Dept 2009] (enforcing a contractual venue selection clause).
Defendants contend their wavier of objection to plaintiff’s choice of venue is unreasonable,
unjust and contrary to public policy and should therefore be invalidated. Defendants offer little more
than an attorney’s affirmation that the place of trial is inconvenient to his office in support of this
argument, falling short of “a ‘detailed evidentiary showing’ based on affidavits from nonparty witnesses,
specifically setting forth the inconvenience of the selected venue” (Geico v Star & Strand Transp., Inc.,
66 Misc3d 686 [Sup Ct Albany Co 2019], citing State Farm Ins. Co. v Brother Transp., Inc., 15 Misc3d
110(A) at *3 [Sup Ct Nassau Co 2007]). The State Legislature’s enactment of Section 501 of the Civil
Practice Law and Rules supports a determination that enforcement of contractual venue provisions is not
against public policy. The court finds no support in the record for defendants’ argument that the
contractual venue provision at issue is unreasonable or unjust.7
Absent from defendants’ moving papers is any argument that either party cannot receive a fair
trial in Sullivan County.
The court is not unsympathetic to the difficulties a sole practitioner faces in representing a
litigant in an upstate county. While counsel for defendants is presumed to have been aware of the venue
of this action upon accepting representation of defendants, the court appreciates counsel’s willingness to
do so. For the convenience of all parties, to the extent reasonably practicable, the court intends to
5
Defendants raise no argument that their blanket waiver of objection to venue anywhere in the State of New York is
overreaching; therefore, the court does not reach that issue.
6
The Laulainen court addressed a contractual provision as to jurisdiction without addressing venue, leaving open the
question of whether a contract may vest one party with authority to designate venue anywhere in this State without objection
from any other party thereto.
7
Defendants have submitted no allegations that they were forced, threatened or coerced into entering into an agreement on
venue; nor have defendants demonstrated the absence of reasonable, albeit perhaps strategic, considerations of plaintiff in
designating venue in Sullivan County.
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202307100476 IndexNO.
INDEX
INDEX #: E2023006654
NO. E2023006654
E2022-1778
FILED: SULLIVAN
MONROE COUNTY
COUNTY
CLERK
CLERK
07/10/2023
05/09/2023
12:33
01:12
AMPM
NYSCEF DOC. NO. 55
69 RECEIVED NYSCEF: 07/10/2023
05/03/2023
conduct all proceedings herein, short of trial, virtually, to accommodate both counsel for plaintiff and
defendants, as well as the parties hereto.
Accordingly, it is hereby
ORDERED that defendants’ motion for a change of venue is denied; and it is further
ORDERED that defendants’ motion to extend discovery deadlines is denied as moot.
The foregoing constitutes the Decision and Order of the Court. The signing of this decision and
order shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable
provisions of that rule regarding notice of entry.
Dated: May 3, 2023 ENTER:
Monticello, New York
______________________________
HON. MEAGAN K. GALLIGAN, J.S.C.
Pursuant to CPLR § 5513, an appeal as of right must be taken within thirty (30) days after service by a
party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry,
except that when appellant has served a copy of the judgment or order and written notice of its entry, the
appeal must be taken within thirty (30) days thereof.
4 of 4
Preview
FILED: MONROE COUNTY CLERK 07/10/2023 12:33 AM INDEX NO. E2023006654 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/10/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3488872 Book Page CIVIL Return To: No. Pages: 5 ARIEL BOUSKILA 80 Broad St Instrument: EXHIBIT(S) Suite 3303 New York, NY 10004 Control #: 202307100476 Index #: E2023006654 Date: 07/10/2023 EBF HOLDINGS, LLC Time: 10:39:50 AM JULIO CESAR LONDONO LONDONO, JULIO CESAR Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202307100476 Index # INDEX INDEX : E2023006654 NO. NO. E2023006654 E2022-1778 FILED: SULLIVAN MONROE COUNTY COUNTY CLERK CLERK 07/10/2023 05/09/2023 12:33 01:12 AMPM NYSCEF DOC. NO. 55 69 RECEIVED NYSCEF: 07/10/2023 05/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN ----------------------------------------------------------------------X KALAMATA CAPITAL GROUP, LLC, Index # E2022-1778 Plaintiff, -against- Decision & Order Motion 2 A PLUS REMODELING AND RESTORATION, LLC, D/B/A A+ REMODELING AND RESTORATION, and TYLER JAY KIVI, Defendants. ----------------------------------------------------------------------X Appearances: Ariel Bouskila, Esq. Dominick R. Dale, Esq. Berkovitch & Bouskila, PLLC Law Office of Dominick Dale, Esq. 80 Broad Street, Suite 3303 7002 Nansen Street New York, NY 10004 Forest Hills, NY 11375 For Plaintiff For Defendants Papers Considered: NYSCEF Filings Numbered 1 to 57 Present: Galligan, J. This action stems from a contract pursuant to which plaintiff alleges it purchased $87,000 in future receivables of defendant A Plus Remodeling and Restoration, LLC d/b/a A+ Remodeling and Restoration (“A Plus”), guaranteed by defendant Tyler Jay Kivi, in exchange for $57,301 in net funding, contemplated, at the time of the execution of the contract, to be remitted to plaintiff via weekly withdrawals of $2,417 from the bank account of defendant A Plus. By complaint, plaintiff alleges that defendant A Plus remitted $12,085 to plaintiff and “ceased remitting” receivables thereafter. Defendants have answered and entered various denials and proffered defenses. The court (Bryant, J.) thereafter denied plaintiff’s motion to compel discovery and defendants’ cross-motion to compel a deposition of plaintiff. Defendants now move for a change of venue pursuant to Section 510(3) of New York’s Civil Practice Law and Rules, and for an order extending discovery deadlines pursuant to Section 2004 thereof.1 Plaintiff opposes the motion. In support of their motion, defendants argue that travel time to Monticello, New York, from New York, New York, is unduly burdensome upon the parties and would prevent counsel for defendants from making personal appearances in court;2 that the court system in Sullivan County has been unduly burdened with cases brought by plaintiff and other merchant cash advance companies; that the forum 1 Defendants are situate in the State of Texas. 2 While defendants, by their papers, allege travel time of “more than a 7 hour drive” between New York City and Monticello, New York, defendants’ Exhibit A demonstrates an estimated travel time, by car, of less than two hours. 1 of 4 202307100476 IndexNO. INDEX INDEX #: E2023006654 NO. E2023006654 E2022-1778 FILED: SULLIVAN MONROE COUNTY COUNTY CLERK CLERK 07/10/2023 05/09/2023 12:33 01:12 AMPM NYSCEF DOC. NO. 55 69 RECEIVED NYSCEF: 07/10/2023 05/03/2023 selection clause of the contract at issue is unreasonable, unjust and contrary to public policy; and that plaintiff would suffer no prejudice were this matter transferred to New York County.3 “Subject to the provisions of subdivision two of section five hundred ten and section five hundred fourteen of [the Civil Practice Law and Rules], written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial,” and “the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order upon motion, or by consent as provided in subdivision (b) of rule 511.” NY CPLR §§ 501, 509.4 In certain circumstances, a court may “change the place of trial of an action where (1) the county designated for that purpose is not a proper county; or (2) there is reason to believe that an impartial trial cannot be had in the proper county; or (3) the convenience of material witnesses and the ends of justice will be promoted by the change.” NY CPLR § 510. The contract at issue contains the following provision: This Agreement, Security Agreement and Guaranty of Performance, and any and all addendums, attachments, exhibits and other documents relating to this Agreement shall by 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 New York (the “Acceptable Forums”). Seller and Guarantor(s) agree that the Acceptable Forums are convenient and submit to the jurisdiction of the Acceptable Forums and waive any and all objections to jurisdiction or venue. If such proceeding be initiated in any other forum, Seller and Guarantor(s) waive any right to oppose any motion or application made by Purchaser to transfer such proceeding to an Acceptable Forum. The Guarantor Acknowledgment section of the contract further provides: This Guaranty of Performance 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 New York, and guarantor agrees that the forum is convenient, submits to its jurisdiction and waives any and all objections to jurisdiction or venue. If such proceeding be initiated in any other forum, guarantor waives any right to oppose any 3 For the reasons set forth herein, because the venue clause of the instant contract is enforceable and is neither unreasonable, unjust nor contrary to public policy, defendants’ remaining arguments must be rejected as the court is without authority to rest a venue change determination thereupon. 4 Thus, if valid, a contractual provision as to venue overrides the residency provisions of Section 503; moreover, in such a case, venue may not be changed by the court unless there is reason to believe an impartial trial could not be held where the action was brought, even if such court determines the county designated is not proper and/or the convenience of material witnesses and the ends of justice would be promoted by a change in venue. 2 of 4 202307100476 IndexNO. INDEX INDEX #: E2023006654 NO. E2023006654 E2022-1778 FILED: SULLIVAN MONROE COUNTY COUNTY CLERK CLERK 07/10/2023 05/09/2023 12:33 01:12 AMPM NYSCEF DOC. NO. 55 69 RECEIVED NYSCEF: 07/10/2023 05/03/2023 motion or application made by purchaser to transfer such proceeding to New York. Waivers of objections to venue have been enforced in similar situations and others. See, e.g., Merchant Cash & Capital, LLC v Portland Wholesale Jewelry, LLC, 2017 NY Slip Op 31651(U) [Sup Ct Nassau Co 2017]; Bizfund LLC v Holland & Sliger Steel, LLC, 2021 NY Slip Op 50504(U) [Sup Ct Kings Co 2021]; Tatko Stone Prods., Inc. v Davis-Giovinzazzo Constr. Co., Inc., 65 AD3d 778 [3d Dept 2009]. “A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, or invalid due to fraud or overreaching,5 or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.” Merchant Cash & Capital, LLC v Laulainen, 55 Misc3d 349, 350 [Sup Ct Nassau Co 2017],6 citing Molino v Sagamore, 105 AD3d 922 [2d Dept 2013]; accord, Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329, 1330 [2d Dept 2009] (enforcing a contractual venue selection clause). Defendants contend their wavier of objection to plaintiff’s choice of venue is unreasonable, unjust and contrary to public policy and should therefore be invalidated. Defendants offer little more than an attorney’s affirmation that the place of trial is inconvenient to his office in support of this argument, falling short of “a ‘detailed evidentiary showing’ based on affidavits from nonparty witnesses, specifically setting forth the inconvenience of the selected venue” (Geico v Star & Strand Transp., Inc., 66 Misc3d 686 [Sup Ct Albany Co 2019], citing State Farm Ins. Co. v Brother Transp., Inc., 15 Misc3d 110(A) at *3 [Sup Ct Nassau Co 2007]). The State Legislature’s enactment of Section 501 of the Civil Practice Law and Rules supports a determination that enforcement of contractual venue provisions is not against public policy. The court finds no support in the record for defendants’ argument that the contractual venue provision at issue is unreasonable or unjust.7 Absent from defendants’ moving papers is any argument that either party cannot receive a fair trial in Sullivan County. The court is not unsympathetic to the difficulties a sole practitioner faces in representing a litigant in an upstate county. While counsel for defendants is presumed to have been aware of the venue of this action upon accepting representation of defendants, the court appreciates counsel’s willingness to do so. For the convenience of all parties, to the extent reasonably practicable, the court intends to 5 Defendants raise no argument that their blanket waiver of objection to venue anywhere in the State of New York is overreaching; therefore, the court does not reach that issue. 6 The Laulainen court addressed a contractual provision as to jurisdiction without addressing venue, leaving open the question of whether a contract may vest one party with authority to designate venue anywhere in this State without objection from any other party thereto. 7 Defendants have submitted no allegations that they were forced, threatened or coerced into entering into an agreement on venue; nor have defendants demonstrated the absence of reasonable, albeit perhaps strategic, considerations of plaintiff in designating venue in Sullivan County. 3 of 4 202307100476 IndexNO. INDEX INDEX #: E2023006654 NO. E2023006654 E2022-1778 FILED: SULLIVAN MONROE COUNTY COUNTY CLERK CLERK 07/10/2023 05/09/2023 12:33 01:12 AMPM NYSCEF DOC. NO. 55 69 RECEIVED NYSCEF: 07/10/2023 05/03/2023 conduct all proceedings herein, short of trial, virtually, to accommodate both counsel for plaintiff and defendants, as well as the parties hereto. Accordingly, it is hereby ORDERED that defendants’ motion for a change of venue is denied; and it is further ORDERED that defendants’ motion to extend discovery deadlines is denied as moot. The foregoing constitutes the Decision and Order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry. Dated: May 3, 2023 ENTER: Monticello, New York ______________________________ HON. MEAGAN K. GALLIGAN, J.S.C. Pursuant to CPLR § 5513, an appeal as of right must be taken within thirty (30) days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty (30) days thereof. 4 of 4