### Regal Capital Inc. v Nomad Ventures LLC 2024 NY Slip Op 31027(U) March 20, 2024 Supreme Court, Kings County Docket Number: Index No. 530946/2022 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.At an lAS Part 83 of the Supreme Court of the State of New York held in and for the County of Kings at 360 A~s Street, Broo Iyn,New York, on the ~ Clayof d . 2024. PRESENT: HON. INGRID JOSEPH, J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------)( REGAL CAPITAL INC, Plaintiff(s)

-againstNOMAD VENTURES LLC d/b/a FIRST AVE AUTO, RONIN VENTURES LLC, and GLENN ALLEN WOODARD, Defendant(s) ----------------------------------------------------------------------)( The following e-filed papers read herein: Notice of Motion/Affirmation in Support/Memo in Support/ Affidavits Annexed/Exhibits Annexed

. Affirmation in Opposition/ Affidavits Annexed/Exhibits Annexed . Index No: 530946/2022

ORDER

NYSCEF Nos.: 3-7; 14 8-12
In this action, Nomad Ventures LLC D/B/A First Ave Auto and Ronin Ventures LLC, ("Defendants") move to dismiss Regal Capital Inc.' s ("Plaintiff') complaint for lack of personal jurisdiction, and failure to state a cause of action pursuant to CPLR 3211 (a)(7) and (8), and in the alternative for an extension of time to serve an answer. Plaintiff has opposed the motion. This action arises from an agreement dated September 9,2022, entered into between the parties wherein Plaintiff paid Defendants a sum of$50,000.qo to purchase all of Defendants' future receivables valued at $75,000.00 ("Agreement"). Plaintiff commenced this action by the filing ofa Verified Summons and Complaint on October 25,2022, and asserts causes of action for breach of contract and breach of a personal guarantee. In support of their motion, Defendants argue that Plaintiff s complaint should be dismissed for lack of personal jurisdiction because Defendant Ronin is an LLC organized in Nebraska and was never a party to any agreement with Plaintiff. Additionally, Defendants argue that they were never personally served with the Summons and Complaint or by any other acceptable means of service. Moreover, Defendants allege that Plaintiff seeks repayment of . $85,937.50 in less than a year, which far exceeds an annualized rate of sixteen percent (16%) and thus is considered a usurious loan under New York Law. In opposition, Plaintiff states that Pursuant to Section 4.5 of the Purchase Agreement, the. parties explicitly agreed that the Agreement would be governed by the laws of New York and

. 

# . that the parties consented to New York or Texas jurisdiction, venue, and choice oflaw, and that
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1 of 5 Atan IAS Part 83 ofthe Supreme;: Courtofthe

.State ofNewYork held in and for the County ofKings at 360 A~s Street, Broo yn, New York, on the~clay of d

. 2024; PRESENT: HON. INGRID JOSEPH, J.S.C. SUPREMECOURT OF THE STATEOF NEW YORK COUNTY OF KINGS 

### ·---------------------------------------------------------------------X REGAL CAPITAL INC., Plaintiff(s)-againstNOMAD VENTURES LLC d/b/aFIRSTAVE AUTO, RONIN VENTURES LLC, and GLENN ALLEN WOODARD, Defendant(s) 

### ----------------------------------------------------------------------X The following e-filedpapers read herein: · Notice ofMotion/Affirmation in Support/Memo in Support/ Affidavits Annexed/Exhibits Annexed.................................... Affirmation in Opposition/Affidavits Annexed/Exhibits Annexed

... Index No: 530946/2022

ORDER

NYSCEF Nos.: 3-7; 14 8-12
In this action, Nomad Ventures LLC D/B/A First Ave Auto and Ronin Ventures LLC, ("Defendants") move to dismiss Regal Capital Inc.'s ("Plaintiff') complaint for lack ofpersonal jurisdiction, and failure to state a cause ofactionpursuant to CPLR 3211(a)(7) and (8), and in the

. alternative for an extension oftimeto serve an answer. Plaintiffhas opposed the motion. This action.arises from an agreement dated September 9, 2022, entered info between the parties wherein Plaintiffpaid Defendants a sum of$50,000

..0.0 to purchase aHofDefendants' future receivables valued at $75,000.00 ("Agreement"). Plaintiffcommenced this action by the filing ofa Verified Summons and Complaint on October 25, 2022, and asserts causes ofaction for breach ofcontract and breach ofa personal guarantee.

. In support oftheir motion, Defendants argue that Plaintiff's complaint should be dismissed for lack ofpersonaljurisdiction because Defendant Ronin is an LLC organized in

.

. Nebraska and was never a party to any agreement with Plaintiff. Additionally, Defendants argue that they were never personally served with the Summons and Complaint orby any other acceptable means ofservice. Moreover, Defendants allege that Plaintiffseeks repayment of

·$85,937.50 in less than a year, which far exceeds an annualized rate ofsixteenpercent (16%) and thus is considered a usurious loan under New York Law. In opposition, Plaintiffstates that Pursuant to Section 4.5 ofthe Purchase Agreement, the · parties explicitly agreed thatthe Agreement would be governed by the laws ofNew York and

. "

.. thatthe parties consentedtoNewYork or Texasjurisdiction, venue, and choice oflaw, and that
1


### [* 1]Defendants waived personal service in favor of service via certified mail with return receipt

requested. Further, Plaintiff argues that it has sufficiently plead viable causes of action for breach of contract and breach of a personal guarantee. Plaintiff states that the language of the Agreement does not indicate that it is a loan, thus its terms cannot be considered a usurious loan under New York law. Generally, a nondomiciliary is subject to the jurisdiction of a New York court if it has purposefully transacted business within the State and there is a "substantial relationship" between this activity and the plaintiffs cause of action (Keutter vMcFadden Oil Corp., 71 AD.2d 460 [1988]; Fanelli vLatman, 202 AD.3d 758 [2d Dept. 2022]). While the ultimate burden of proof regarding personal jurisdiction rests with the party asserting jurisdiction, the plaintiff in opposition to a motion to dismiss pursuant to CPLR 3211 (a)(8) need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the Supreme Court (Daniel B. Katz & Associates Corp. vMidland Rushmore, LLC, 90 AD.3d 977 [2d Dept. 2011]; Jacobs v 201 Stepheson Corp., 138 AD.3d 693 [2d Dept. 2016]; Cornely v Dynamic HVAC Supply, LLC, 44 AD. 3d 986 [2d Dept. 2007]). 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, invalid due to fraud or overreaching, 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 (Somerset Fine Home Building, Inc., 185 AD.3d 752 [2d Dept 2020]; Lifetime Brands, Inc., v Garden Ridge, L.P., 105 AD.3d 1011 [2d Dept. 2013]; Creative Mobile Technologies, LLC v Smart Modular Technologies, Inc., 97 AD.3d 626 [2d Dept. 2012]). Parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance ofthe contract (Somerset Fine Homes Buildings, Inc. at 753). Thus, a forum selection clause will be given effect in the absence oLI 'strong showing' that it should be set aside (US. Merchandise, Inc. vL & R Distributors, Inc., 122AD.3d 613 [2d Dept. 2014]; Horton v Concerns of Police Survivors, Inc., 62 AD ..D 836 [2d Dept. 2009]). General Obligations Law S5-1402 provides that a party may maintain an action in New York against a foreign defendant if the parties have entered into an agreement that (i) contains a New York forum selection clause, (ii) contains a New York c:hoice of law provision, and (iii) involves a transaction that in the aggregate is over $1 million. This section, however, is not a

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2 of 5 Defendants waived personal service in favor ofservice via certified mail with return receipt requested. Further, Plaintiffargues that it has sufficiently plead viable causes ofaction for breach ofcontract and breach ofa personal guarantee. Plaintiffstates thatthe language ofthe Agreement does not indicate that it is a loan, thus its terms cannot be considered a usurious loan underNew York law. Generally, a nondomiciliary is subject to thejurisdictionofa New York court ifit has purposefully transacted business withinthe State and there is a "substantial relationship" between this activity and the plaintiff's cause ofaction (Keutter vMcFadden Oil Corp., 71 A.D.2d 460 [1988]; Fanelli v Latman, 202 A.D.3d 758 [2d Dept. 2022]). While the ultimate burden ofproofregarding personaljurisdictionrests withtheparty assertingjurisdiction, the plaintiffin opposition to a motion to dismiss pursuant to CPLR 321 l(a)(8) need only make a prima facie showing·thatthe defendant was subjecttothe personaljurisdiction ofthe Supreme Court (Daniel B. Katz &Associates Corp. vMidlandRushmore, LLC, 90 A.D.3d 977 [2dDept. 2011]; Jacobs v 201 Stepheson Corp., 138 A.D.3d 693 [2d Dept. 2016]; Cornely v Dynamic HVACSupply, LLC, 44 A.D.3d 986 [2d Dept. 2007]). 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 ofpublic policy, invalid due to fraud oroverreaching, or it is shown that a trial inthe selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived ofits day in court (Somerset Fine Home Building, Inc., 185 A.D.3d 752 [2d Dept 2020]; Lifetime Brands, Inc., v Garden Ridge, L.P., 105 A.D.3d 1011 [2d Dept. 2013]; Creative Mobile Technologies, LLCv SmartModular Technologies, Inc., 97 A,.D.3d 626 [2d Dept. 2012]). Parties to a contract may freely select a forum which will resolve any disputes overthe interpretation or performance ofthe contract (SomersetFine Homes Buildings, Inc. at 753). Thus, a forum selection clause will be given effect in the absence of

# a'strong showing' that it should be set aside (US. Merchandise, Inc. v L & R Distributors, Inc., 122A.D.3d 613 [2d Dept. 2014]; Horton v Concerns of Police Survivors, Inc., 62 A.D

..D 836 [2d Dept. 2009]). General Obligations Law § 5-1402 provides that a party may maintain an action in New York against a foreign defendant ifthe parties have entered into an agreement that (i) contains a New York forum selection clause, (ii) contains a New York choice oflaw provision, and (iii) involves a transaction that in the aggregate is over $1 million. This section, however, is not a

2


### [* 2]limitation on the use and effectiveness of forum selection clauses. Rather, it contains a statutory

mandate that a clause designating New York as the forum "shall" be enforceable, in cases involving $1 million or more, regardless of any inconvenience to the parties. Therefore, in actions involving less than $1 million, forum selection clauses, are enforceable according to their terms (see Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v Worley, 257 AD2d 228, 231 [1st Dept 1999]; Bizfund LLC v Holland & Sliger Steel, LLC, 71 Misc.3d 12226[A] [Sup. Ct. Kings County 2021]). Here, RoninVentures LLC is listed as an additional entity subject to the terms of the contract. Further, Plaintiff has established that the Agreement between the parties included a Choice of Law clause designating New York as the forum pertaining to any disputes regarding the contract, which Defendants signed, subjecting them to the personal jurisdiction of the Court. In challenging the legitimacy of the Choice of Law clause, the Defendants do not argue that the forum selection clause is unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or argue 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. Additionally, Section 4.5 the Agreement states in part that: "Merchant and Guarantor hereby agree to waive any formal personal service of process and agree that any summons and/or complaint or other process to commence any litigation by RCI will be properly served if sent by certified mail, return receipt requested, to the mailing address listed on page 1 of this Agreement, or any other address provided in writing to RCI from the Merchant/Guarantor which includes any address listed o~ the' Exhibit A,' if any." Plaintiff submits an affidavit of service and return receipt indicating that Defendants were served in accordance with the terms of the contract. Accordingly, the Court has jurisdiction over this matter and that branch of Defendant's motion to dismiss is denied. When a party moves to dismiss a complaint pursuant to CPLR 321 1(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (Leon v. Martinez, 84 NY2d 83, 87 [1994]; Skefalidis v China Pagoda NY, Inc., 210 AD. 3d 925 [2d Dept. 2022]); Oluwo v Sutton, 206 AD.3d 750 [2d Dept. 2022]; Sokol v Leader, 74 AD.3d 1180 [2d Dept. 2010]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (Eskridge vDiocese of Brooklyn, 210 AD.3d 1056 [2d Dept. 2022]; Zurich American Insurance Company v City of

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3 of 5 limitation on the use and effectiveness offorum selection clauses. Rather, it contains a statutory mandate that a clause designating New York as the forum "shall" be enforceable, in cases involving $1 million or more, regardless ofany inconvenience to the parties. Therefore, in actions involving less than $1 million, forum selection clauses, are enforceable according to their terms (see Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v Worley, 257 AD2d 228, 231 [1st Dept 1999]; BizfundLLCv Holland & Sliger Steel, LLC, 71 Misc.3d 12226[A] [Sup. Ct. Kings County 2021]). Here, RoninVentures LLC is listed as an additional entity subject to the terms ofthe contract. Further, Plaintiffhas established that the Agreement between the parties included a Choice ofLaw clause designating New York as the forum pertaining to any disputes regarding the contract, which Defendants signed, subjecting them to the personaljurisdiction ofthe Court. In challenging the legitimacy ofthe Choice ofLaw clause, the Defendants do not argue that the forum selection clause is unreasonable, unjust, in contravention ofpublic policy, invalid due to fraud or overreaching, or argue that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived ofits day in court. Additionally, Section 4.5 the Agreement states inpart that: "Merchant and Guarantor hereby agree to waive any formal personal service of process and agree that any summons and/or complaint or other process to commence any litigation by RCI will be properly served if sent by certified mail, return receipt requested, to the mailing address listed on page 1ofthis Agreement, or any other address provided in writing to RCI from the Merchant/Guarantor which includes any address listed o~ the 'ExhibitA,' ifany." Plaintiffsubmits an affidavit ofservice and return receipt indicating that Defendants were served in accordance with the terms ofthe contract. Accordingly, the Court hasjurisdiction overthis matter and that branch ofDefendant's motion to dismiss is denied. When a party moves to dismiss a complaint pursuant to CPLR 321 l(a)(7), the standard is whether the pleading states a cause ofaction, not whether the proponent ofthe pleading has a
cause ofaction (Leon v. Martinez, 84 NY2d 83, 87 [1994]; Skefalidis v China Pagoda NY, Inc., 210 A.D. 3d 925 [2d Dept. 2022]); Oluwo v Sutton, 206 A.D.3d 750 [2d Dept. 2022]; Sokol v Leader, 74 A.D.3d 1180 [2d Dept. 2010]). Whether a plaintiffcan ultimately establish its allegations is not part ofthe calculus in determining a motion to dismiss (Eskridge v Diocese of Brooklyn, 210 A.D.3d 1056 [2d Dept. 2022]; ZurichAmerican Insurance Company v City of

3


### [* 3]New York, 176 A.D3d 1145 [2d Dept. 2019]; EBC lIne. v Goldman, Sachs & Co., 5 NY3d

[2005]).On a mati an made pursuant taCPLR 3211(a)(7) to. dismiss a camplaint, the burden never shifts to.the nan-maving party to. rebut a defense asserted by the maving party (Sokol at 1181; Rovello v Orofino Realty Co. Inc., 40 NY2d 970 [1976]). CPLR 3211 allaws 

### aplaintiff to. submit affidavits, but it daes nat ablige him ar her to. do. so.an penalty af dismissal (Id.; Sokol at 

# n 81). Affidavits may be received far a limited purpase anly, serving normally to. remedy defects in the camplaint and such affidavits are nat to. be examined far the purpase af determining whether there is evidentiary suppart far the pleading (Id.; Rovello at 635; Nonon at 827). Thus, a plaintiff will nat be penalized because he has nat made an evidentiary shawing iIi suppart af its . camplaint. Unlike an a mati an far summary judgment, where the caurt searches the record and assesses the sufficiency af evidence, an a motian to. dismiss, the caurt merely examines the adequacy afthe pleadings (Davis v. Boeheim, 24 NY3d 262, 268 [2014]). The apprapriate test afthe sufficiency af a pleading is whether such pleading gives sufficient natice af the . transactians, accurrences, ar series af transactians ar accurrences intended to. be praved and whether the requisite elements af any cause af actian knawn to.aur law can be discerned from its averments (V Groppa Pools, Inc. v. Massello, 106'AD3d 722,723 [2d Dept 2013]; Moore v Johnson, 147 AD2d 621 [2d Dept 1989]). To. plead a cause af actian far breach af cantract, a plaintiff must allege (l) the existence af a cantract, (2) plaintiff's perfarmance pursuant to.the cantract, (3) defendant's breach afthe. cantractual abligatians; and (4) damages resulting from that breach (34-0673, LLC v Seneca Insurance Company, 39 NY3d 44 [2022]). Plaintiff's allegatians must identify the provisians af the cantract that were breached (ld.). Here, the Camplaint sets farth the particular terms af the cantract upan which Plaintiff's claim is based. Additianally, the allegatians made in the Camplaint as well as the incarporated

. . cantract gives sufficient natice af the transactians, accurrences, ar series af transactiansor accurrences intended to. be praved and state a valid cause afactian far breach af cantract. Accardingly, the Plaintiff has sufficiently stated a cause af actian to. breach af cantract and that branch af Defendant's mati an to. dismiss is denied.

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4 of 5 New York, 176 A.D3d 1145 [2d Dept. 2019]; EECIInc. vGoldman, Sachs & Co., 5 NY3d [2005]). On a motion made pursuant to CPLR 321 l(a)(7) to dismiss a complaint, the burden never shifts to the non-moving party to rebut a defense asserted by the moving party (Sokol at 1181;

. . . Rovella v Orofino Realty Co. Inc., 40 NY2d 970 [1976]). CPLR 3211 allows a:plaintiffto submit affidavits, but it does not oblige him or her to do so on penalty ofdismissal (Id.; Sokol at 1181). Affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint and such affidavits are not to be examined for the purpose ofdetermining whether there is evidentiary support for the pleading (Id.; Rovella at 635; Nanon at 827). Thus, a plaintiff will not be penalized because he has not made an evidentiary showing irt support ofits · complaint. Unlike on a motion for summaryjudgment, where the court searches the record and

assesses the sufficiency ofevidence, on a motion to dismiss, the court merely examines the adequacy ofthe pleadings (Davis v. Boeheim, 24 NY3d 262,268 [2014]). The appropriate test ofthe sufficiency ofa pleading is whether such pleading gives sufficient notice ofthe

. transactions, occurrences, or series oftransactions or occurrences intended to be proved and whether the requisite elements ofany cause ofaction known to our law can be discerned from its averments (V Groppa Pools, Inc. v. Massella, 106'AD3d 722, 723 [2d Dept 2013]; Moore v Johnson, 147 AD2d 621 [2d Dept 1989]). To plead a cause ofaction for breach ofcontract, a plaintiffmust allege (1) the existence ofa contract, (2) plaintiff's performance pursuant to the contract, (3) defendant's breach ofthe· contractual obligations; and (4) damages resulting from that breach (34-06 73, LLCv Seneca Insurance Company, 39 NY3d 44 [2022]). Plaintiff's allegations must identify the provisions of the contract that were breached (Id.). Here, the Complaint sets forth the particular terms ofthe contract upon which Plaintiff's claim is based. Additionally, the allegations made inthe Complaint as well as the incorporated

. . contract gives sufficient notice ofthe transactions, occurrences, or series oftransactions or
occurrences intended to be proved and state a valid cause ofaction for breach ofcontract. Accordingly, the Plaintiffhas sufficiently stated a cause ofaction to breach ofcontract and that branch ofDefendant's motion to dismiss is denied.

4



### [* 4]The rudimentary element of usury is the existence of a loan or forbearance of money, and

where there is no loan, there can be no usury, however unconscionable the contract may be" (LG Funding, LLC v. United Senior Props. o/Olathe, LLC, 181 A.D.3d 664,665, 122 N.Y.S.3d 309). To determine whether a transaction constitutes a usurious loan: "The court must examine whether the plaintiff is absolutely entitled to repayment under all circumstances. Unless a principal sum advanced is repayable absolutely, the transaction is not a loan. 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 (Id. at 665-666; Principis Capital, LLC vI Do, Inc., 201 A.D.3d 752 [2d Dept. 2022]). Here defendants only state in a conclusory fashion that the Agreement is usurious because the amount of repayment Plaintiff seeks is greater than 16% permitted under New York State law, and that Plaintiff has harassed defendants in seeking repayments. Conclusory statements alone are insufficient to allege that a contract is usurious. The Court finds that Defendants have failed to proffer the contract or any case law in their moving papers. The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion (Ditech Financial, LLC v Connors, 206 AD3d 694 [2d Dept. 2022]; Wells Fargo Bank, NA. vMarchione, 69 AD3d 204 [2d Dept. 2009]; quoting Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2d Dept. 2005]). Thus, documents and arguments submitted for the first time in reply papers generally should be disregarded by the court, especially when the other party is not given the opportunity to respond to the reply papers (Citimortgage, Inc v Espinal, 134AD3d 876 [2d Dept. 2015],' Central Mortg. Co. vJahnsen, 150 AD3d 661 [2d Dept. 2017]). Accordingly, it is hereby, ORDERED, that Defendants' motion to dismiss is denied, and it is further, ORDERED, that Defendants are granted an extension of 30 days from the notice of entry of this Order to file and serve an Answer. This constitutes the decision and order of the court.



### -~- Hon. Ingri~eph l.S.C.
5 

### HOh. Ingrid Joseph Supreme Court Justice I

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5 of 5 The rudimentary element ofusury is the existence ofa loan or forbearance ofmoney, and where there is no loan, there can be no usury, however unconscionable the contract may be" (LG Funding, LLCv. UnitedSenior Props. of Olathe, LLC, 181 A.D.3d 664,665, 122 N.Y.S.3d 309). To determine whether a transaction constitutes a usurious loan: "The court must examine whether the plaintiffis absolutely entitledto repayment under all circumstances. Unless a principal sum advanced is repayable absolutely, the transactionis not a loan. 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 (Id. at 665-666; Principis Capital, LLCv IDo, Inc., 201 A.D.3d 752 [2d Dept. 2022]). Here defendants only state in a conclusory fashion that the Agreement is usurious because the amount ofrepayment Plaintiffseeks is greater than 16%permitted under NewYork State law, and that Plaintiffhas harassed defendants in seeking repayments. Conclusory statements alone are insufficient to allege that a contract is usurious. The Court finds that Defendants have failed to profferthe contract or any case law in their moving papers. The function ofreplypapers is to address arguments made in oppositionto the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion (Ditech Financial, LLCv Connors, 206 AD3d 694 -[2d Dept. 2022]; Wells Fargo Bank, NA. v Marchione, 69 AD3d 204 [2d Dept. 2009]; quoting Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2d Dept. 2005]). Thus, documents and arguments submitted for the first time in reply papers generally should be disregarded by the court, especially when the other party is not given the opportunity to respond to the reply papers (Citimortgage, Inc v Espinal, 134AD3d 876 [2d Dept. 2015]; CentralMortg. Co. vJahnsen, 150 AD3d 661 [2d Dept. 2017]). Accordingly, it is hereby, ORDERED, that Defendants' motion to dismiss is denied, and it is further, ORDERED, that Defendants are granted an extension of30 days from the notice ofentry ofthis Order to file and serve an Answer. This constitutes the decision and order ofthe court.

5 Hon. l~ephJ.S.C. 

### Hoh. Ingrid Joseph Supreme Court Justice I 

# I [* 5]