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FILED: NASSAU COUNTY CLERK 11/06/2023 08:46 AM INDEX NO. 614511/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
BYZFUNDER NY LLC, INDEX NO.: 614511/2023
Plaintiff,
vs.
MEMORANDUM OF LAW IN
TORRES GENERAL COSNTRUCTION AND HOME OPPOSITION TO PRE-ANSWER
IMPROVEMENT INC D/B/A TORRES GENERAL MOTION TO DISMISS
CONSTRUCTION AND HOME IMPROVEMENT/
TORRES GENERAL FLOORING INC AND
TARCISIO L TORRES,
Defendants.
Yosef C. Feldman, Esq.
Lieberman and Klestzick, LLP
Attorneys for Plaintiff
71 S Central Avenue
Valley Stream NY 11580
P: 516-900-6720
Email: yosef@landklegal.com
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ...............................................................................4
PROCEDURAL ARGUMENTS ...............................................................................5
DEFENDANTS’ ARGUMENT AGAINST THE FORUM SELECTION CLAUSE LACKS A
BASIS IN LAW .......................................................................................................................... 7
NEW YORK CONSTITUTION ARTICLE VI § 7 PROVIDES THE SUPREME
COURT WITH GENERAL ORIGINAL JURISDICTIONError! Bookmark not
defined.
FEES ARE NOT EXCESSIVE AND THUS NOT DEEMED A PENALTY ........10
DEFENDANTS BREACH OF CONTRACT HAS BEEN DEMONSTRATED ...10
THE TRANSACTION WAS NOT USURIOUS ACCORDING TO THE K9
BYTES STANDARD FOR CASH ADVANCES...................................................12
(i) AGREEMENT CONTAINED A MANDATORY RECONCILIATION PROVISION 13
(ii) AGREEMENT HAS NO FINITE TERM ...................................................................... 14
(iii) NO RECOURSE TO PLAINTIFF IF DEFENDANTS FILE BANKRUPTCY ........... 14
CONCLUSION ........................................................................................................15
TABLE OF AUTHORITIES
Cases
Bell Constructors v Evergreen Caissons, Inc., 236 A.D.2d 859, 860 (4th Dept 1997)
...........................................................................................................................8, 11
Brooke Group v JCH Syndicate 488, 87 NY2d 530 (1996) ....................................10
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14 (1985)...........................7
2
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Georgia Malone & Co., Inc. v. Rieder, 19 NY3d 511 (2012) ...................................6
Goldman v. Metropolitan Life Ins. Co. 5 NY3d 561 (2005) .....................................6
IBIS Capital Group, LLC v Four Paws Orlando LLC, 2017 NY Slip Op 30477[U]
(Sup Ct, Nassau County 2017). ............................................................................17
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703,
(1982) ......................................................................................................................7
K9 Bytes, Inc. v Arch Capital Funding, LLC, 56 Misc 3d 807 (Sup Ct, Westchester
County 2017). ................................................................................................ 15, 17
Miller v. Schloss, 218 NY 400 (1916) .......................................................................7
Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415 (1972)..........7
Shin-Etsu Chem. Co. v ICICI Bank Ltd., 9 AD3d 171 (1st Dept 2004). ................11
The Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972) ..................................8
Statutes
CPLR § 327 (b) .......................................................................................................10
GOL § 5-1402 ..........................................................................................................10
N.Y. C.P.L.R. § 302 (McKinney 2006) .....................................................................8
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Plaintiff, Byzfunder NY LLC, respectfully submits this Memorandum of Law in
Opposition of Defendants’ pre-Answer Motion to Dismiss pursuant to Civil Practice Law and
Rules (“CPLR”) § 3211(a)(7) and (a)(8).
PRELIMINARY STATEMENT
Plaintiff respectfully submits this memorandum of law in opposition to Defendants’
Motion to Dismiss pursuant to CPLR § 3211(a)(7) and (a)(8). Defendants raise CPLR § 3014 and
3017(a) defenses due to multiple causes of action as grounds for pre-answer dismissal although
this would require a ruling on the validity of the agreement. Defendants also raise General
Obligations Law § 5-1402 (choice of forum in foreign contracts) as grounds for a pre-answer
dismissal. Defendants further raises enforceability of the default fee under presumably CPLR
3211 § (a)(1) and is similarly meritless because there is nothing shockingly unconscionable about
a clause for calculating liquidated damages that assess a sum certain in the event of default. Finally,
Defendants argue for a premature dismissal on the merits based upon failing to allege a breach of
contract despite the agreement being attached to the complaint. Their burden to overcome for
these long shot arguments is governed by CPLR § 3211(a)(1) and has been denied by these courts
in similar matters. 1
Defendants’ strongest argument in favor of their Motion is that this Court lacks personal
jurisdiction under (a)(8), and that GOL 5-1402, the statutory forum non conveniens bar, is
applicable to this case. It will be shown that Defendants’ pre-answer Motion to Dismiss is just an
attempt at forum shopping. The jurisdiction and venue of this New York Supreme Court Court,
See Byzfunder v Grace Landscape, Index No. 600559/2023 (Supreme Court of New York, Nassau County) Hon.
1
Lisa Cairo; See UFS LLC v Shaday Fashion, Index No. 616255/2022 (Supreme Court of New York, Nassau County)
Hon. Bruce Cozzens; See Fox v Avelar Ventures, Index No. 602789/2023.
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and the choice of New York law to govern the transaction are clearly settled by the parties’
Agreement, on a page signed by the Defendants. Their premature argument about the merits of the
case indicates that their defense is entirely based upon interpretations of New York law, which this
Court is the most suited to adjudge.
This Court, very recently, and very thoroughly, evaluated Plaintiff’s standard contract
in Merchant Capital Collections as Assignee of Fox Capital Group, Inc. v Goodman Tile & Stone
Inc. et al., Index No. 611958/2022, (Nassau Co., Prager, J.). Defendants’ cross-motion for
summary judgment raises the same arguments for dismissal as found in the Goodman Tile case:
dismissal on jurisdictional grounds, or alternatively seeking summary judgment on the defense
that the Agreement is a usurious loan. The Court’s eight-page decision in Goodman Tile describes
why jurisdiction was proper pursuant to the forum selection clause, and how the Agreement
satisfied Second Department’s precedent for enforceable receivables transactions.
PROCEDURAL ARGUMENTS
PLAINTIFF HAS PROPELY PLED MULTIPLE CAUSES OF ACTION
CPLR Sec. 3014 clearly states “Separate causes of action or defenses shall be
separately stated and numbered and may be stated regardless of consistency. Causes
of action or defenses may be stated alternatively or hypothetically.”
CPLR Sec. 3017 (a) clearly states that “every complaint, counterclaim, cross-claim,
interpleader complaint, and third-party complaint shall contain a demand for the
relief to which the pleader deems himself entitled. Relief in the alternative or of
several different types may be demanded.”
Given this basic rule of civil procedure, it is clear that Defendant only wants to delay
recourse to Plaintiff and does not have any valid defense to Plaintiff’s breach of contract claim.
Plaintiff’s unjust enrichment claim is properly pled under CPLR 3014 and CPLR 3017(a) as an
alternative theory of recovery not yet duplicative of the breach of contract also included in the
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verified Complaint. In fact, Defendant seems to be admitting to the enforceability of the contract
as well as Defendants breach considering that Defendant believes the unjust enrichment cause of
action should be dismissed. Until this court rules on the enforceability of the contract, the cause
of action for unjust enrichment is properly pled as an alternate theory of recovery.
The only potentially meritorious argument in the Defendants’ motion is their claim that
the Plaintiff’s causes of action for breach of contract and unjust enrichment are duplicative. This
is true only where there is an enforceable contract:
"To state a claim for unjust enrichment, a plaintiff must allege that: (1) the
[defendant] was enriched, (2) at [plaintiff's] expense, and (3) that it is against equity
and good conscience to permit the [defendant] to retain what is sought to be
recovered. An unjust enrichment claim is not available where it simply duplicates,
or replaces, a conventional contract or tort claim. Such a claim is duplicative of a
breach of contract claim where "both causes of action seek damages for events
arising from the same subject matter that is governed by an enforceable contract."
See Attentive Home Care Agency, Inc. v Galinkin, 2022 NY Slip Op 30110[U],
*3-4 [Sup Ct, Kings County 2022].
Until this court rules on the enforceability of this agreement, the cause of action for
unjust enrichment is not yet duplicative.
“On a motion to dismiss pursuant to CPLR 3211 (a)(7), the pleading must be afforded
a liberal construction and the court must "accept the facts as alleged in the complaint as true,
accord plaintiffs the benefit of every possible favorable inference, and determine only whether
the facts as alleged fit within any cognizable legal theory. The essential elements for pleading a
cause of action to recover damages for breach of contract are the existence of a contract, the
plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual
obligations, and damages resulting from the breach" (Dee v Rakower, 112 AD3d 204, 208-209,
976 N.Y.S.2d 470 [2d Dept 2013]).
“The theory of unjust enrichment lies as a quasi-contract claim.” Goldman v.
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Metropolitan Life Ins. Co. 5 NY3d 561, 572 (2005). “An unjust enrichment claim is rooted in the
equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of
another.” Georgia Malone & Co., Inc. v. Rieder, 19 NY3d. 511 (2012) quoting Miller v. Schloss,
218 NY 400 (1916).
A cause of action for unjust enrichment will lie, where: the defendant was enriched, the
enrichment was at the expense of the Plaintiff, and it is against equity and good conscience to
permit the defendant to retain what is sought to be recovered. Paramount Film Distrib. Corp. v.
State of New York, 30 N.Y.2d 415 (1972), cert. denied, 414 U.S. 829, 94 S.Ct. 57 (1973).
The Plaintiff’s Exhibits attached to its complaint demonstrates that the Plaintiff
advanced Company Defendant a sum of money in exchange for a future interest in its receivables,
that was secured by and reduced by an interest in its present receipts. This performance of
funding and Company Defendant’s failure to tender to the Plaintiff its portion of the daily
receipts, resulted in a continuing unlawful conversion of the Plaintiff’s security interest at the
Plaintiff’s expense. It would be against equity and good conscience to permit the defendant to
retain the value of the withheld receipts.
DEFENDANTS’ ARGUMENT AGAINST THE FORUM SELECTION CLAUSE LACKS
A BASIS IN LAW
The case law presented by the Defendants’ moving papers cite to the standard of review
for Choice of Law provisions which making them immaterial in demonstrating their burden on
overcoming the Plaintiff’s Choice of Forum. “[T]he personal jurisdiction requirement is a
waivable right,” however, and there are a “variety of legal arrangements’ by which a litigant may
give “express or implied consent to the personal jurisdiction of the court.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 n. 14 (1985) (quoting Insurance Corp. of Ireland v. Compagnie des
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Bauxites de Guinee, 456 U.S. 694, 703, (1982)). The same is true of venue. CPLR § 501, entitled
"Contractual provisions fixing venue," states, "[s]ubject to the provisions of section 510,
written agreement fixing place of trial, made before an action is commenced, shall be enforced
upon a motion for change of place of trial."
Likewise, a forum-selection clause, like the one contained in the Agreement in the present
case, is sufficient to vest New York courts with personal jurisdiction over a nonresident defendant
without regard to whether another independent ground for personal jurisdiction exists under the
New York long-arm statute N.Y. C.P.L.R. § 302 (McKinney 2006). “Where such forum-selection
provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable
and unjust,’ ... their enforcement does not offend due process.” Id. at note 14 (quoting The Bremen
v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972)). “i.e. a trial in the contractual forum would be so
gravely difficult and inconvenient that the challenging party would for all practical purposes, be
deprived of his or her day in court.” Bell Constructors v Evergreen Caissons, Inc., 236 A.D.2d
859, 860 (4th Dept 1997)
“Forum selection clauses, like the one contained in the subject Agreement, are
primafacie valid and should be enforced unless the resisting party clearly proves that
enforcement would be unreasonable and unjust... Trump v. Deutsche Bank Trust Co. Americas,
65 A.D.3d 1329, 887 N.Y.S.2d 121 (2d Dept. 2009). Any alleged overreaching, which is an
exception to the general rule that forum selection clauses are prima facie valid, must be based
on something more than the mere fact that the clause was a boilerplate provision printed on the
back of a form contract. Under the fraud exception, a forum selection clause in a contract is not
enforceable if the inclusion of that clause in the contract was the product of fraud or coercion.
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Contractual forum selection clauses are prima facie valid and should be enforced absent some
compelling reason to the contrary.” See Emerald Group Holdings v. NHTP LLC Index No.
612182/2021, NYSCEF Docket No. 47 (quoting Bernstain v. Wysoki, 77 A.D.3d 241,907
N.Y.S.2d 49 (2d Dept. 2010)).
Fraud or overreaching is a recognized defense to the enforceability of a forum selection
clause in New York and, to invalidate a forum selection clause on these grounds, the allegation
of fraud or overreaching must go, not to the contract as a whole, but to the clause itself. See
Emerald Group Holdings v. NHTP LLC Index No. 612182/2021, NYSCEF Docket No. 47
(quoting See Hunt v. Landers, 309 A.D.2d 900, 766 N.Y.S.2d 384 (2d Dept. 2003)).
In the instant matter, the subject Agreement contains a forum selection clause that
defendants were aware of when they executed said agreement. The Agreement, which was
signed by Defendant, dated April 10, 2023, states in pertinent part:
This Agreement, Security Agreement and Guaranty, Guaranty of
Performance, and any and all addendums, attachments, exhibits, and
other Documents relating to this Agreement in any way, shall be
governed by and construed in accordance with the laws of the state of
New York and the federal Arbitration Act, without regards to any
applicable principals of conflicts of law. Any suit, action or proceeding
arising hereunder, or the interpretation, performance or breach hereof,
shall, if PURCHASER so elects, be instituted in any court sitting in any
New York State Supreme Court sitting in the State of New York (the
"Acceptable Forums"). 2
The Defendants have not made the requisite strong showing that the subject clause was
the product of overreaching or was unreasonable, or that its enforcement would be unjust.
Accordingly, jurisdiction and venue are proper in this action. Defendants have agreed that New
2
See NYSCEF document number 2, “Agreement”, page 4, paragraph 4.6.
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York is an acceptable forum and have waived in advance any and all objections to the forum.
The permissive rule CPLR § 325 is at the discretion of this court and considering that the parties
have freely stipulated to the jurisdiction of any New York Supreme Court due to the courts
familiarity with the current subject matter, this courts jurisdiction is proper.
FEES ARE NOT EXCESSIVE AND THUS NOT DEEMED A PENALTY
Parties are free to agree to a liquidated damages clause “provided that the clause is neither
unconscionable nor contrary to public policy”. 3In the instant matter, Plaintiff’s “fee” amounts to
$2,500.00 which is eight (7.57%) percent of the amount of the damages due to Defendant’s breach
of $19,800.00. See Agreement. Perseus provides a guide for when excessive fees should not be
sustained. 4 In Perseus, the court rejected the liquidated damages since the “liquidated damages
amount is more than seven times that of Perseus's actual damages.” 5 Courts have routinely held
that such fees are not excessive or a penalty. In fact, the nominal fees in matters similar to the case
at bar have also been allowed and ruled not excessive or a penalty under the above reasoning. 6 As
such, Plaintiff’s fees are not a “penalty” and Defendants are merely attempting to delay what
rightfully belongs Plaintiff.
DEFENDANTS BREACH OF CONTRACT HAS BEEN DEMONSTRATED
There are four elements to establish a cause of action for a breach of contract. The elements
to proof a breach of contract are: (1) formation of a contract between plaintiff and defendant, (2)
performance by plaintiff, (3) defendant's failure to perform, (4) resulting damage. [ Palmetto
Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804 (2011).
3
Truck Rent-A-Center, Inc. v Puritan Farms 2nd, Inc., 41 NY2d 420 (1977).
4
Perseus Telecorn, LTD. v Indy Research Labs, LLC, 2018 NY Slip Op 33083[U] (Sup Ct, NY County 2018).
5
Id.
6
See attached Exhibit A “Vox Funding v Lifepointe Hospice Dallas Metroplex LLC”; Exhibit B Union Funding Source v Sunshine Halal
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The Agreement in the pertinent part in PAGE ONE states:
“In consideration of payment by PURCHASER to Merchant of the Purchase Price
set forth above, Merchant hereby sells, assigns and transfers to PURCHASER
(making PURCHASER the absolute owner) the Purchased Percentage of all of
Merchant's payments, receipts, settlements and funds paid to or received by or for
the account of Merchant… until the Purchased Amount has been delivered by or
on behalf of Merchant to PURCHASER…”
“Merchant hereby authorizes PURCHASER to ACH debit the agreed Remittance
from the Account on the agreed upon Payment Frequency...” 7
As clearly shown on the very first page of the agreement, Merchant is responsible for the
daily remittance of the Purchased Receivables. Furthermore, it is Merchant's responsibility to
request a reconciliation if the daily receivables go above or below the good faith approximation.
It is a condition precedent that Defendant must show their receivables in order to affect a
reconciliation and Defendant has failed to do so. Furthermore, Defendant in their opposition papers
have not provided any proof of any downturn or stoppage of receivables. Plaintiff’s proof of
Defendant’s breach is the pay run 8 which shows lack of remittance. As Defendant failed to keep
their end of the Agreement by stopping all payments without requesting a reconciliation,
Defendant is in breach of the Agreement.
The complaint is sufficiently pleaded as it must "set forth the terms of the agreement upon
which liability is predicated, either by express reference or by attaching a copy of the contract"
Chrysler Capital Corp. v Hilltop Egg Farms, 129 AD2d 927, 928. 9 In the instant matter, Plaintiff
attached the agreement as an exhibit with the Summons and Complaint. 10
7
See NYSCEF doc no 2, page 1.
8
See NYSCEF doc no 3.
9
Valley Cadillac Corp. v. Dick, 238 A.D.2d 894 (1997).
10
See NYSCEF document number 1 Summons and Complaint and 2 “Agreement”.
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THE TRANSACTION WAS NOT USURIOUS ACCORDING TO THE K9 BYTES
STANDARD FOR CASH ADVANCES
The type of transaction at issue is a cash advance, and the Court has consistently ruled on
the validity of this specific type of agreement in the context of the usury laws. Courts have
repeatedly held that agreements similar to the case at bar to be one of a purchase and sale; and not
of a loan. 11
According to Funding Group Inc. v Water Chef, Inc., 19 Misc. 3d 483, “If the transaction
is not a loan, there can be usury, however unconscionable the contract may be.” Transmedia Rest.
Co. v 33 E. 61st St Rest. Corp, 184 Misc. 2d. at 711 “there can be no usury unless the principal
sum advanced is repayable absolutely” and Professional Merchant Advance Capital, LLC v Your
Trading Room, LLC. In this type of agreement, the issue before the Court in determining whether
the Agreement is usurious is not what the percentage differential is between the Purchase Price
and the Receivables Purchased Amount, but whether repayment was absolute.
In determining whether a transaction is a loan, the court must examine whether or not
Defendant is absolutely entitled to repayment under all circumstances. 12 Certain factors are
reviewed to ascertain if repayment is absolute or contingent. “Usually, courts weigh three factors
when determining whether repayment is absolute or contingent: (1) whether there is a
reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3)
whether there is any recourse should the merchant declare bankruptcy. 13
11
K9 Bytes Inc., et al. v. Arch Capital Funding, LLC, et al., Index No. 54755/2016 (Sup. Ct. Westchester Co. 5/8/17).
12
K9 Bytes, Inc. v Arch Capital Funding, LLC, 57 N.Y.S.3d 625 (Sup Ct., Westchester County 2017).
13
Id.
12
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(i) AGREEMENT CONTAINED A MANDATORY RECONCILIATION
PROVISION
The Court has already held that a transaction would not constitute a loan when "(t)he
agreement provided a reconciliation on demand provision whereby the parties permitted to demand
the monthly reconciliation of funds from the other to ensure that neither entity collected more or
less of the sales proceeds than they were contractually entitled to collect from the designated bank
account”. 14
In the case at bar, the Agreement signed by the parties has a mandatory reconciliation
obligation on Plaintiff to reduce the payments upon a reduction in revenue which could be utilized
by Company Defendants at any time. The Agreement states one page two:
“At any time, Merchant or PURCHASER may request a reconciliation to the Remittance
amount to more closely reflect the Merchants actual Future Receipts times the Purchased
Percentage Any reconciliation request by Merchant must be: (A) in writing; (B) include a
copy of Merchant’s most recent month’s bank statement and Merchant’s month-to date
banking information (the “Reconciliation Documentation’); and (C) be sent to
PURCAHSER by e-mail at [redacted]. Within four days of PURCAHSER’s reasonable
verification of the Reconciliation Documentation, PURCHASER shall adjust the
Remittance amount...” 15 (emphasis added)
As is self-evident from the language of the Agreement, upon a reconciliation request by
Defendant, Plaintiff was required to provide a reconciliation. There is a mandatory reconciliation
provision in the Agreement which allowed Defendants to request a reduction in the daily
remittance had Defendant’s receivables been reduced.
Defendants have not requested a reconciliation, remitted financial statements to Plaintiff
or requested a reduction. The fact of the matter is that the evidence shows they made no attempt
14
Retail Capital, LLC v Spice Intentions Inc., 2016 NY Slip Op 32614[U] (Sup Ct., Queens County 2016).
15
See NYSCEF doc no. 2, page 2, section 1.3.
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to comply with their obligations in the Agreement’s reconciliation provisions, as explained in the
next section.
(ii) AGREEMENT HAS NO FINITE TERM
In addition, to determine if a transaction is a loan, the Court will review the Agreement to
16
ascertain if the Agreement has a finite term or not. Here, the Agreement has no end date or
sunset provision but relies solely on the Defendants receivables, as such, the term “interest rate”
has no application here. Rather, the Agreement solely relies on the Defendants receivables.
Defendants cannot argue that the terms of repayment are not based upon their receipts
because they possessed a contractual right to demand a reconciliation according to their receipts.
If Defendants wanted their receipts to be adjusted on a continual basis, the contract allowed for
them to demand this from Plaintiff by providing documentation. Defendants chose not to do this.
(iii) NO RECOURSE TO PLAINTIFF IF DEFENDANTS FILE BANKRUPTCY
The final factor in the usury analysis is “whether the defendant has any recourse should the
merchant declare bankruptcy”. K9 Bytes, Inc. v Arch Capital Funding, LLC, 56 Misc. 3d 807 (Sup
Ct., Westchester County 2017).
Here, because PAGE ONE of the Agreement states that
“Merchant going bankrupt or going out of business, or experiencing a slowdown in
business, or a delay in collecting its receivables does not constitute a breach of this Agreement;” 17
16
IBIS Capital Group, LLC v Four Paws Orlando LLC, 2017 NY Slip Op 30477[U] (Sup. Ct., Nassau County 2017).
17
See NYSCEF doc no 2, “Agreement”, page 1, paragraph 2.
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The Agreement is crystal clear that bankruptcy would not be deemed a default, that the
merchant would be entitled to liquidate its assets and that Plaintiff would not have any recourse.
Defendants have not requested a reconciliation, remitted financial statements to Plaintiff or
requested a reduction in payments. The Agreement in this case therefore satisfies all of the factors
laid out in K9 Bytes for a cash advance to not be deemed usurious as a matter of law.
CONCLUSION
For all the foregoing reasons, the Defendants’ pre-answer motion to dismiss should be
denied, the Court should find 1) it has personal jurisdiction over the Defendants; 2) that as a matter
of law the documentary evidence supports the Plaintiff’s allegation that the agreement was for the
purchase of receivables; 3) that until the Court rules on the enforceability of the Agreement the
Plaintiff’s claims are not duplicative as a matter of law; 4) the agreement is for a cash advance for
future receivables 4) and that the Defendants be ordered to enter a response to Plaintiff’s complaint
within 30 days.
For purposes of this application only, the Plaintiff’s attorney hereby waives its
entitlement to attorney’s fees and retains the right to renew the application for attorney fees for
future applications to the Court.
Nassau County, New York Respectfully submitted,
November 3, 2023
By:
___________________
Yosef C. Feldman, Esq.
Lieberman and Klestzick, LLP
Attorneys for Plaintiff
71 S Central Avenue
Valley Stream NY 11580
P: 516-900-6720
Email: yosef@landklegal.com
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WORD COUNT CERTIFICATION
I hereby certify pursuant to part 202.8-b of the Uniform Civil Rules for the Supreme Court
& the County Court that this document according to the word count tool on Microsoft Word, the
total number of words in this document is 3609, consistent with the rule that (i) affidavits,
affirmations, briefs and memoranda of law in chief be limited to 7,000 words each; (ii) reply
affidavits, affirmations, and memoranda be no more than 4,200 words, and do not contain any
arguments that do not respond or relate to those made in the memoranda in chief.
By:
___________________
Yosef C. Feldman, Esq.
Lieberman and Klestzick, LLP
Attorneys for Plaintiff
71 S Central Avenue
Valley Stream NY 11580
P: 516-900-6720
Email: yosef@landklegal.com
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________________________________________________________________________
Index No. 614511/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
BYZFUNDER NY LLC,
Plaintiff,
-against-
TORRES GENERAL COSNTRUCTION AND HOME IMPROVEMENT INC D/B/A
TORRES GENERAL CONSTRUCTION AND HOME IMPROVEMENT/ TORRES GENERAL
FLOORING INC AND TARCISIO L TORRES
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO PRE-ANSWER MOTION TO
DISMISS
LIEBERMAN AND KLESTZICK, LLP
71 S. Central Avenue, Second Floor
Valley Stream, New York 11580
Mail To:
PO Box 356
Cedarhurst, New York 11516
PHONE: (516) 900-6720
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