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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At an IAS 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 yn, New 

York, on the~ clay of d . 2024; 

PRESENT: HON. INGRID JOSEPH, J.S.C. 

SUPREME COURT OF THE STATE OF 

NEW YORK COUNTY OF KINGS 

·---------------------------------------------------------------------X 

REGAL CAPITAL INC., 

Plaintiff(s) 

-againstNOMAD VENTURES LLC d/b/a FIRST A VE AUTO, RONIN 

VENTURES LLC, and GLENN ALLEN WOODARD, 

Defendant(s) 

----------------------------------------------------------------------X 

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 oftime to serve an answer. Plaintiff has opposed the motion. 

This action .arises from an agreement dated September 9, 2022, entered info between the 

parties wherein Plaintiff paid Defendants a sum of $50,000 .. 0.0 to purchase aH of Defendants' 

future receivables valued at $75,000.00 ("Agreement"). Plaintiff commenced this action by the 

filing of a 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 of law, 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 v McFadden Oil Corp., 71

AD.2d 460 [1988]; Fanelli v Latman, 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. v Midland 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. v L & 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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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 plaintiff's cause of action (Keutter v McFadden Oil Corp., 71 

A.D.2d 460 [1988]; Fanelli v Latman, 202 A.D.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 321 l(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. v Midland Rushmore, LLC, 90 A.D.3d 977 [2d Dept. 

2011]; Jacobs v 201 Stepheson Corp., 138 A.D.3d 693 [2d Dept. 2016]; Cornely v Dynamic 

HVAC Supply, 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 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 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, LLC v Smart Modular Technologies, Inc., 97 A,.D.3d 626 [2d Dept. 2012]). Parties 

to a contract may freely select a forum which will resolve any disputes over the interpretation or 

performance of the contract (Somerset Fine 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 if the parties have entered into an agreement that (i) contains a 

New York forum selection clause, (ii) contains a New York choice of law 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 v Diocese of

Brooklyn, 210 AD.3d 1056 [2d Dept. 2022]; Zurich American Insurance Company v City of

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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 l(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 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. 201 0]). Whether a plaintiff can ultimately establish its 

allegations is not part of the calculus in determining a motion to dismiss (Eskridge v Diocese of 

Brooklyn, 210 A.D.3d 1056 [2d Dept. 2022]; Zurich American Insurance Company v City of 

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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 a plaintiff 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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New York, 176 A.D3d 1145 [2d Dept. 2019]; EEC I Inc. 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 of dismissal (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 of determining 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 of its · 

complaint. 

Unlike on a motion for summary judgment, where the court searches the record and 

assesses the sufficiency of evidence, on a motion to dismiss, the court merely examines the 

adequacy of the pleadings (Davis v. Boeheim, 24 NY3d 262,268 [2014]). The appropriate test 

of the sufficiency of a pleading is whether such pleading gives sufficient notice of the . 

transactions, occurrences, or series of transactions or occurrences intended to be proved and 

whether the requisite elements of any cause of action 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 of action for breach of contract, a plaintiff must allege (1) the existence 

of a contract, (2) plaintiff's performance pursuant to the contract, (3) defendant's breach of the· 

contractual obligations; and (4) damages resulting from that breach (34-06 73, LLC v 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 of the contract upon which Plaintiff's 

claim is based. Additionally, the allegations made in the Complaint as well as the incorporated . . 

contract gives sufficient notice of the transactions, occurrences, or series of transactions or 

occurrences intended to be proved and state a valid cause of action for breach of contract. 

Accordingly, the Plaintiff has sufficiently stated a cause of action to breach of contract 

and that branch of Defendant's motion to dismiss is denied. 

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[* 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 v I 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. 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],' Central Mortg. Co. v Jahnsen, 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

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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. 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 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 v I 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 ofreply 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. 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]; Central Mortg. Co. v Jahnsen, 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. 

5 

Hon. l~eph J.S.C. 

Hoh. Ingrid Joseph 

Supreme Court Justice 

I 

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