Preview
FILED: MONROE COUNTY CLERK 07/18/2023 10:35 PM INDEX NO. E2023005189
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 07/18/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3501170
Book Page CIVIL
Return To: No. Pages: 5
DOMINICK R. DALE
7002 Nansen Street Instrument: EXHIBIT(S)
New YorkForest Hills, NY 11375
Control #: 202307190250
Index #: E2023005189
Date: 07/19/2023
EBF HOLDINGS, LLC Time: 9:27:26 AM
US MARINE TRANSPORTATION LLC
JOHN, NAEB TEKESTE
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
202307190250 Index #NO.
INDEX : E2023005189
EF2023-1064
E2023005189
FILED: ULSTER COUNTY CLERK 07/18/2023
MONROE 06/30/2023 10:35
02:33 PM
NYSCEF DOC. NO. 71
25 RECEIVED NYSCEF: 07/18/2023
06/30/2023
STATE O['NEW YORK
SPARTAN BUSINESS SOLUTION, LLC DIBIA
SPARTAN CAPITAL,
DECISION & ORDER
Plaintiff,
Index No.: EF2023-1064
- against -
SPIE LLC D/B/A SPIE SECURITY, SPIE BUSINESS
LLC
and MICHAEL DORRITIE'
Defendants.
Supreme Court, Ulster CountY
Present: James P. GilPatric, J.S.C.
Appearances:
BERKOVITCH & BOUSKILA, PLLC
Attorneys for Plaintiff
1545 U.S.202, Suite l0l
Pomona, New York 10970
By: Ariel Bouskila, Esq.
JACOVETTI LAW, P.C.
Attorneys for Defendants
100 Garden City Plaza, S\ite 227
Garden City, New York 11501
By: Robert C. Jacovetti, Esq.
Gilpatric, J.:
plaintiff moves, pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss defendants'
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202307190250 IndexNO.
INDEX #: E2023005189
EF2023-1064
E2023005189
FILED: ULSTER COUNTY CLERK 07/18/2023
MONROE 06/30/2023 10:35
02:33 PM
NYSCEF DOC. NO. 71
25 RECEIVED NYSCEF: 07/18/2023
06/30/2023
a cause of action upon
counterclaims based upon documentary evidence and for failure to state
which relief can be granted. The defendants oppose the motion.
Cash Advance
The plaintiff alleges, inter alia, that it entered into a Standard Merchant
February 6,2023 ' Plaintiffs
Agreement (hereinafter "Agreement") with the defendants on or about
allege that pursuant to said Agreement, the defendants agreed to sell
the plaintiff $27,000'00 of
their futtre receivables, to be remitted to plaintiff at a rate of l5o/o of the weekly
collected
agreed to personally
receivables of defendants. Additionally, plaintiff alleges that Michael Dorritie
that the
guaranty defendants' performance pursuant to the Agreement. Plaintiff further alleges
and was entitled
Agreement also provided that in the event the defendants sought a reconciliation,
to one pursuant to the Agreement, plaintiff was required to perform a reconciliation. Plaintiff
was not performed
asserts that defendants have alleged in their counterclaims that a reconciliation
requested by
by the plaintiff However, plaintiff asserts that at no time was a formal reconciliation
the defendants and that any such claim that plaintiff breached the Agreement
by failing to conduct
a reconciliation must be dismissed. The defendants argue that the
plaintiff has not offered any
admissible evidence to support the dismissals of their counterclaims contained
in the answer.
,,A motion to dismiss on the ground that the action is barred by documentary
refutes [the]
evidence...may be appropriately granted only where the documentary evidence utterly
defendant's factual allegations, conclusively establishing a defense as a matter
of law" (CPLR 321 I
(a) (1); Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326120021; see L9@,
g4 Ny2d 83, 88 t19941). Further, on a motion to dismiss for a failure to state a cause of action
and the
pursuant to CpLR 32ll (a)(7), the allegations of the complaint are deemed to be true;
therein
pleading will be deemed to allege whatever may be reasonably implied from the statements
(CPLR 32ll (a) (7); Foley v D'Aeostino AD2d 60 l2nd Dept 19641). "[T]he sole criterion is
,21
whether the pleading states a cause of action, and if from its four corners factual allegations are
discemed which taken together manifest any cause of action cognizable at law, a motion
for
are to
dismissal will fail..." (Gueeenheimer v. Ginsburg, 43 NY2d 268,275 tl977l). Pleadings
be liberally construed, and defects shall be ignored if a substantial right of a party is not prejudiced
(CLR 3026). The pleading must apprise the defendant of the nature of the plaintiffs grievances
andthereliefthedefendantseeks@22AD2d9lu'tDept1964]).
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202307190250 IndexNO.
INDEX #: E2023005189
EF2023-1064
E2023005189
FILED: ULSTER COUNTY CLERK 07/18/2023
MONROE 06/30/2023 10:35
02:33 PM
NYSCEF DOC. NO. 71
25 RECEIVED NYSCEF: 07/18/2023
06/30/2023
As to the ptaintiff s motion to dismiss defendants' counterclaims, and applying the law as
set forth above to the submissions herein, the Court finds that the defendants have stated valid
counterclaims in their answer against the movants (see CLR 321 1 [a] [7]). Moreover, the question
to be resolved is not whether the defendants can ultimately establish the allegations and is likely
to prevail, but whether, if believed, the counterclaims sets forth facts that constitute a viable cause
of action (see EBC I. Inc v Goldman. Sachs &Co., 5 NY3d I l, 19 [2005]; Crepin v Foeart]', 59
AD3d 837, 838 [3'd Dept 2009]). Under this test, the Court determines that the allegations set forth
in defendants' counterclaims, if accepted as true and accorded the benefit of every favorable
inference, state viable claims (see Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975,976 l3'd
Dept 2004]). Consequently, the motion to dismiss the defendants' counterclaims is denied as to
CpLR 3211 (a) (7). Furthermore, the Court finds that plaintiff has failed to submit any
documentary evidence that conclusively refutes the counterclaims of the defendants that the
defendants might have to recover (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326
120021;see Leon v Martinez, 84 NY2d 83, 88 t1994]). As such, this matter must proceed with
discovery.
Consequently, based upon the abovementioned reasoning, the plaintifPs motion to dismiss
the defendants' counterclaims is denied. Otherwise, the Court has considered all submissions filed
either directly with the Court and /or on NYSCEF, as well as, any remaining arguments and finds
them either unavailing and/or unnecessary to reach.
Accordingly, it is
ORDERED that the plaintiff s motion to dismiss the defendants' counterclaims is
denied.
This shall constitute the decision and order of the Court. Counsel is not relieved from the
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202307190250 IndexNO.
INDEX #: E2023005189
EF2023-1064
E2023005189
FILED: ULSTER COUNTY CLERK 07/18/2023
MONROE 06/30/2023 10:35
02:33 PM
NYSCEF DOC. NO. 71
25 RECEIVED NYSCEF: 07/18/2023
06/30/2023
applicable provisions of that rule regarding notice of entry'
SO ORDERED.
t
Dated: L l"to ,2023
Kingston, N6*"'Yo.k
ENTER,
f,, L
P. J.S.C.
Papers considered: Notice of Motion dated May 24,2023;Affidavit in Support of Justin Yuen,
datid May 24,2)23,with exhibits;Affirmation of Ariel Bouskila, Esq., dated May 24,2023,
with exhibits; Memorandum of Law in Support, dated May 24,2023; Affirmation in Opposition
of Robert C. Jacovetti, Esq., dated June 5, 2}23;Memorandum of Law in Opposition, dated June
5,2}23;Memorandum of Law in Reply, dated June 8, 2023. (This list may inadvertently fail to
list all submissions filed on NYSCEF and fully considered by the Court)
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Preview
FILED: MONROE COUNTY CLERK 07/18/2023 10:35 PM INDEX NO. E2023005189 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 07/18/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3501170 Book Page CIVIL Return To: No. Pages: 5 DOMINICK R. DALE 7002 Nansen Street Instrument: EXHIBIT(S) New YorkForest Hills, NY 11375 Control #: 202307190250 Index #: E2023005189 Date: 07/19/2023 EBF HOLDINGS, LLC Time: 9:27:26 AM US MARINE TRANSPORTATION LLC JOHN, NAEB TEKESTE 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 202307190250 Index #NO. INDEX : E2023005189 EF2023-1064 E2023005189 FILED: ULSTER COUNTY CLERK 07/18/2023 MONROE 06/30/2023 10:35 02:33 PM NYSCEF DOC. NO. 71 25 RECEIVED NYSCEF: 07/18/2023 06/30/2023 STATE O['NEW YORK SPARTAN BUSINESS SOLUTION, LLC DIBIA SPARTAN CAPITAL, DECISION & ORDER Plaintiff, Index No.: EF2023-1064 - against - SPIE LLC D/B/A SPIE SECURITY, SPIE BUSINESS LLC and MICHAEL DORRITIE' Defendants. Supreme Court, Ulster CountY Present: James P. GilPatric, J.S.C. Appearances: BERKOVITCH & BOUSKILA, PLLC Attorneys for Plaintiff 1545 U.S.202, Suite l0l Pomona, New York 10970 By: Ariel Bouskila, Esq. JACOVETTI LAW, P.C. Attorneys for Defendants 100 Garden City Plaza, S\ite 227 Garden City, New York 11501 By: Robert C. Jacovetti, Esq. Gilpatric, J.: plaintiff moves, pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss defendants' 1 1 of 4 202307190250 IndexNO. INDEX #: E2023005189 EF2023-1064 E2023005189 FILED: ULSTER COUNTY CLERK 07/18/2023 MONROE 06/30/2023 10:35 02:33 PM NYSCEF DOC. NO. 71 25 RECEIVED NYSCEF: 07/18/2023 06/30/2023 a cause of action upon counterclaims based upon documentary evidence and for failure to state which relief can be granted. The defendants oppose the motion. Cash Advance The plaintiff alleges, inter alia, that it entered into a Standard Merchant February 6,2023 ' Plaintiffs Agreement (hereinafter "Agreement") with the defendants on or about allege that pursuant to said Agreement, the defendants agreed to sell the plaintiff $27,000'00 of their futtre receivables, to be remitted to plaintiff at a rate of l5o/o of the weekly collected agreed to personally receivables of defendants. Additionally, plaintiff alleges that Michael Dorritie that the guaranty defendants' performance pursuant to the Agreement. Plaintiff further alleges and was entitled Agreement also provided that in the event the defendants sought a reconciliation, to one pursuant to the Agreement, plaintiff was required to perform a reconciliation. Plaintiff was not performed asserts that defendants have alleged in their counterclaims that a reconciliation requested by by the plaintiff However, plaintiff asserts that at no time was a formal reconciliation the defendants and that any such claim that plaintiff breached the Agreement by failing to conduct a reconciliation must be dismissed. The defendants argue that the plaintiff has not offered any admissible evidence to support the dismissals of their counterclaims contained in the answer. ,,A motion to dismiss on the ground that the action is barred by documentary refutes [the] evidence...may be appropriately granted only where the documentary evidence utterly defendant's factual allegations, conclusively establishing a defense as a matter of law" (CPLR 321 I (a) (1); Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326120021; see L9@, g4 Ny2d 83, 88 t19941). Further, on a motion to dismiss for a failure to state a cause of action and the pursuant to CpLR 32ll (a)(7), the allegations of the complaint are deemed to be true; therein pleading will be deemed to allege whatever may be reasonably implied from the statements (CPLR 32ll (a) (7); Foley v D'Aeostino AD2d 60 l2nd Dept 19641). "[T]he sole criterion is ,21 whether the pleading states a cause of action, and if from its four corners factual allegations are discemed which taken together manifest any cause of action cognizable at law, a motion for are to dismissal will fail..." (Gueeenheimer v. Ginsburg, 43 NY2d 268,275 tl977l). Pleadings be liberally construed, and defects shall be ignored if a substantial right of a party is not prejudiced (CLR 3026). The pleading must apprise the defendant of the nature of the plaintiffs grievances andthereliefthedefendantseeks@22AD2d9lu'tDept1964]). 2 2 of 4 202307190250 IndexNO. INDEX #: E2023005189 EF2023-1064 E2023005189 FILED: ULSTER COUNTY CLERK 07/18/2023 MONROE 06/30/2023 10:35 02:33 PM NYSCEF DOC. NO. 71 25 RECEIVED NYSCEF: 07/18/2023 06/30/2023 As to the ptaintiff s motion to dismiss defendants' counterclaims, and applying the law as set forth above to the submissions herein, the Court finds that the defendants have stated valid counterclaims in their answer against the movants (see CLR 321 1 [a] [7]). Moreover, the question to be resolved is not whether the defendants can ultimately establish the allegations and is likely to prevail, but whether, if believed, the counterclaims sets forth facts that constitute a viable cause of action (see EBC I. Inc v Goldman. Sachs &Co., 5 NY3d I l, 19 [2005]; Crepin v Foeart]', 59 AD3d 837, 838 [3'd Dept 2009]). Under this test, the Court determines that the allegations set forth in defendants' counterclaims, if accepted as true and accorded the benefit of every favorable inference, state viable claims (see Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975,976 l3'd Dept 2004]). Consequently, the motion to dismiss the defendants' counterclaims is denied as to CpLR 3211 (a) (7). Furthermore, the Court finds that plaintiff has failed to submit any documentary evidence that conclusively refutes the counterclaims of the defendants that the defendants might have to recover (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326 120021;see Leon v Martinez, 84 NY2d 83, 88 t1994]). As such, this matter must proceed with discovery. Consequently, based upon the abovementioned reasoning, the plaintifPs motion to dismiss the defendants' counterclaims is denied. Otherwise, the Court has considered all submissions filed either directly with the Court and /or on NYSCEF, as well as, any remaining arguments and finds them either unavailing and/or unnecessary to reach. Accordingly, it is ORDERED that the plaintiff s motion to dismiss the defendants' counterclaims is denied. This shall constitute the decision and order of the Court. Counsel is not relieved from the 3 3 of 4 202307190250 IndexNO. INDEX #: E2023005189 EF2023-1064 E2023005189 FILED: ULSTER COUNTY CLERK 07/18/2023 MONROE 06/30/2023 10:35 02:33 PM NYSCEF DOC. NO. 71 25 RECEIVED NYSCEF: 07/18/2023 06/30/2023 applicable provisions of that rule regarding notice of entry' SO ORDERED. t Dated: L l"to ,2023 Kingston, N6*"'Yo.k ENTER, f,, L P. J.S.C. Papers considered: Notice of Motion dated May 24,2023;Affidavit in Support of Justin Yuen, datid May 24,2)23,with exhibits;Affirmation of Ariel Bouskila, Esq., dated May 24,2023, with exhibits; Memorandum of Law in Support, dated May 24,2023; Affirmation in Opposition of Robert C. Jacovetti, Esq., dated June 5, 2}23;Memorandum of Law in Opposition, dated June 5,2}23;Memorandum of Law in Reply, dated June 8, 2023. (This list may inadvertently fail to list all submissions filed on NYSCEF and fully considered by the Court) 4 4 of 4