Motion to Dismiss in Vox Funding Llc v. Keller Haus D/B/A LUXURY BATH OC, Kurt Keller| Trellis.Law

On May 31, 2023 a Motion-Secondary was filed involving a dispute between Vox Funding Llc, and Keller Haus D B A Luxury Bath Oc, Kurt Keller, for Commercial - Contract in the District Court of Nassau County.

Preview
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

VOX FUNDING LLC, Index No.: 608576/2023

Plaintiff,

vs. MEMORANDUM OF LAW IN
OPPOSITION TO PRE-ANSWER
MOTION TO DISMISS
KELLER HAUS D/B/A LUXURY BATH OC AND
KURT KELLER,

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

1 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

TABLE OF CONTENTS
PRELIMINARY STATEMENT...................................................................................................... 4
SERVICE WAS PROPER AS PER THE AGREEMENT .............................................................. 4
PLAINTIFF’S CAUSES OF ACTION ARE NOT DUPLICATIVE .............................................. 6
DEFENDANTS BREACH OF CONTRACT HAS BEEN DEMONSTRATED ........................... 8
THE TRANSACTION WAS NOT USURIOUS ACCORDING TO THE K9 BYTES
STANDARD FOR CASH ADVANCES ...................................................................................... 10
i. AGREEMENT CONTAINED A MANDATORY RECONCILIATION PROVISION
11
ii. AGREEMENT HAS NO FINITE TERM ...................................................................... 12
i. NO RECOURSE TO PLAINTIFF IF DEFENDANTS FILE BANKRUPTCY ......... 13
THE DEFENDANT NOT PROVIDED A PROPER EXCUSE FOR AN EXTENTION FOR TIME
TO FILE ......................................................................................................................................... 13
CONCLUSION .............................................................................................................................. 14
By: ________________________ ......................................................................................... 15
WORD COUNT CERTIFICATION ............................................................................................. 16
By: ________________________ ......................................................................................... 16
MEMORANDUM OF LAW IN OPPOSITION TO PRE-ANSWER MOTION TO DISMISS ... 17

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

Georgia Malone & Co., Inc. v. Rieder, 19 NY3d 511 (2012) ...................................6

Goldman v. Metropolitan Life Ins. Co. 5 NY3d 561 (2005) .......................................

2 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

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

3 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

PRELIMINARY STATEMENT

The pre-answer motion before the Court is an obvious delay tactic. Defendants are gaming the

extensions of time found in CPLR 3211(f) and CPLR 2004 in bad faith. Plaintiff’s contract and

supporting documents, incorporated into its verified complaint, sufficiently provided Defendants

with adequate notice of the occurrences upon which this lawsuit is based. For the purpose of

pleading jurisdiction, both parties are domiciled in New York.

The common law of this state lets parties stipulate to the service of process by mail, and common-

sense rules of statutory construction proscribe applying the personal service statutes defendants

hang their argument on, CPLR Sections 308, 312-a and 313, to the present case where the

sufficiency of personal service is not an issue. Likewise, Defendants' arguments for duplication

of claims are meritless and nearly identical to what this court found unpersuasive in Fox Capital

Group, Inc. v. RPP Products Inc. et al. (Index No. 604875/2021) (S. Ct. Nassau Co., Jimenez, J.).

SERVICE WAS PROPER AS PER THE AGREEMENT

Parties are permitted to agree to an alternative method of service of process as long as the

agreed upon method is reasonably calculated to provide actual notice of the legal proceeding. See

Gilbert v. Burstine, 255 N.Y. 348, 355-356 (January 13, 1931) (“It is not contrary to natural justice

that a man who has agreed to receive a particular mode of notification of legal proceedings should

be bound by a judgment in which that particular mode of notification has been followed, even

though he may not have actual notice of them.”).

Here, under the terms of their agreement, Defendants consented to service of process by

First Class or Priority mail to the addresses provided to Plaintiff in the parties’ Agreement, a

method reasonably calculated to provide actual notice of the legal proceeding. “Only a limited

4 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

group of public policy interests has been identified as sufficiently fundamental to outweigh the

public policy favoring freedom of contract”. Matter of New Brunswick Theol. Seminary v Van

Dyke, 2020 NY Slip Op 03114 at 3 (2nd Dept., June 3, 2020). “The fact that a contract term may

be contrary to a policy reflected in the Constitution, a statute or a judicial decision does not render

it unenforceable”. Matter of New Brunswick Theol. Seminary v Van Dyke, 2020 NY Slip Op

03114 at 3 (2nd Dept., June 3, 2020). “Indeed, the courts of this State regularly uphold agreements

waiving statutory or constitutional rights.” Matter of New Brunswick Theol. Seminary v Van

Dyke, 2020 NY Slip Op 03114 at 3 (2nd Dept., June 3, 2020).

Here, Defendants’ argument against service by mail requires the court to read the

permissive language of BCL 307(a) “In any such case, process against such foreign corporation

may be served upon the secretary of state as its agent” as mandatory, without any basis for

asserting why. Subsection (b) clearly applies to those cases where a plaintiff chooses to serve the

Secretary of State, a scenario not applicable to this action. The Agreement’s terms setting service

by process mail are a naturally related to resolving conflict of law headaches arising in interstate

commerce instead of magnifying them as Defendants’ reading of the terms would ensure.

The statute Defendants cite is an example of why Service of Process Clauses are included

in commercial contracts. Traditional methods for service of process on a foreign party are not

designed for interstate commerce, where parties explicitly consenting to jurisdiction in a foreign

forum. Service on the Secretary of State merely supplements as a permissive process to serving

the secretary of state on an unregistered foreign corporation and offers no fundamental

countervailing public policy to freedom of contract that is sufficient to outweigh favoring an

interpretation of the provision as promoting a reasonable alternative to serving the Secretary of

State in order to commence litigation in the parties’ chosen forum.

5 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

PLAINTIFF’S CAUSES OF ACTION ARE NOT DUPLICATIVE

Defendants’ claim is that the Plaintiff’s causes of action for breach of contract and unjust

enrichment are duplicative, and therefore Plaintiff’s claim for unjust enrichment should be

dismissed. Here, all three of Plaintiff’s causes of action fit within a cognizable legal theory.

Plaintiff has alleged that Company Defendant and Guarantors entered into a contract with Plaintiff,

consideration was remitted, Defendants have breached the terms of the contract and guaranty, and

Plaintiff is entitled to liquidated damages. Plaintiff has alternatively alleged that Defendants still

should not be unjustly enriched absent a legally binding contract due to Plaintiff’s detrimental

reliance on their representations.

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.”

In Novac Entities v Coronam Auto Repair, this court upheld Plaintiff’s alternative causes

of action for breach of contract and unjust enrichment. 1 Issue has not yet been joined and

Defendants may still call the enforceability of the contract into doubt with their anticipated

defenses. The Court must reserve its judgment as to whether the Plaintiff’s claims are duplicative

until the time it decides enforceability on a motion for summary judgment. Once the Court finds

the Agreement enforceable, it may then safely dismiss Plaintiff’s unjust enrichment claim as

duplicative.

1
See attached Exhibit Novac Entities v Coronam Auto Repair
6

6 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

“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. Metropolitan Life Ins.

Co. 5 NY3d 561, 572 (2005). “It is an obligation imposed by equity to prevent injustice, in the

absence of an actual agreement between the parties concerned.” IDT Corp. v Morgan Stanley Dean

Witter & Co., 12 NY3d 132 (2009). “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. Company Defendant’s failure to

tender to the Plaintiff its portion of the daily receipts, resulted in a continuing unlawful

7 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

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 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).

The Agreement in the pertinent part states:

“In consideration of the payment of the Purchase Price specified above, Merchant hereby
sells, assigns, and transfers to Purchaser, without recourse, the Amount Sold and will
deliver the Specified Percentage of the proceeds of each future sale made by Seller
(collectively “Future Receipts”) in accordance with this Agreement…Merchant agrees to
remit to Purchaser in accordance with the terms of this Agreement the Specified
Percentage of the Future Receipts until the Amount Sold has been forwarded to
Purchaser.” 2

As clearly shown in 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 Agreement 3 and the pay run 4 . As Defendant failed to keep their end of the

2
See NYSCEF doc no 2, page 1, paragraph 2.
3
See NYSCEF doc no 2.
4
See NYSCEF doc no 3. “Pay run”.
8

8 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

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, 928.10 In the instant matter, Plaintiff

attached the Agreement as an exhibit with the Summons and Complaint. 5

The complaint alleges that Plaintiff paid Company Defendant for the future receivables,

Company Defendant initially made payments, but “Company Defendants, however, intentionally

stopped remitting the purchased receivables to Plaintiff from the Bank Account without proper

notice and failed to provide Plaintiffs proper financial disclosures or a written request for

reconciliation, thereby breaching the agreement.” 6 The Agreement states “6. Events of Default.

An “Event of Default” may be considered to have taken place if any of the following occur:…“ (a)

Merchant intentionally interferes with Purchaser’s right to collect the Specified Percentage.” 7

Exhibit B, the payrun, attached to the complaint, indicates that Defendants failed to

continue making payments as evidenced by the ‘Status’ column in the Pay Run. 8 As to the

Guaranty, the Complaint alleges that the under the Agreement between the parties Guarantor

guaranteed performance if Company Defendant breached and has failed to perform in lieu of

Company Defendant’s breach, thereby causing damage to Plaintiff for a sum certain. 9 Specifically,

the Guaranty states on page 9 of the Agreement:

5
See NYSCEF doc no 2, “Agreement”.
6
See NYSCEF Document number 1, Complaint page 4 paragraph 9.
7
See NYSCEF doc 2, “Exhibit A” Agreement, page 5, section 3.1 “Events of Default”.
8
See NYSCEF doc no 4, “Pay Run”.
9
See the Complaint page 4 and 5, NYSCEF Document number 1.
9

9 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

“By signing this Agreement on behalf of Merchant AND ON THEIR OWN BEHALF (each
such signer a Guarantor), the undersigned Guarantors hereby assume and, jointly and
severally, guarantee to Purchaser prompt and complete performance of the following
obligations of Merchant (the “Guaranteed Obligations”)...” 10

Therefore, the complaint should not be dismissed because Plaintiff has satisfied its

obligation for specificity in both having attached the contract to its complaint and by having

specified that Defendants’ failure to remit the Purchased Percentage and closure of the Bank

Account without proper notice to Plaintiff was the cause of the Defendants breach.

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.

10
See NYSCEF doc no 2, “Agreement” page 9, paragraph 33.
11
K9 Bytes Inc., et al. v. Arch Capital Funding, LLC, et al., Index No. 54755/2016 (Sup. Ct. Westchester Co. 5/8/17).
10

10 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

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

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 on page three:

“Either Purchaser or Merchant may give written notice to the other party requesting a

reconciliation to determine whether Purchaser received an amount greater or less than the

Purchased Percentage of Merchant’s Future Receipts… Upon reasonable verification of

Merchant’s actual Future Receipts for the month under review, Purchaser shall adjust the

12 K9 Bytes, Inc. v Arch Capital Funding, LLC, 57 N.Y.S.3d 625 (Sup Ct., Westchester County 2017).
13 Id.
14
Retail Capital, LLC v Spice Intentions Inc., 2016 NY Slip Op 32614[U] (Sup Ct., Queens County 2016).
11

11 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

Estimated Remittance Amount on a going-forward basis to more closely reflect the Merchant’s

actual Future Receipts times the Specified Percentage…” 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 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 daily basis, the contract allowed for them to

demand this from Plaintiff by providing documentation on a daily basis. Defendants chose not

to do this.

15
See NYSCEF doc no. 2, “Agreement”, page 3, section 2.
16
IBIS Capital Group, LLC v Four Paws Orlando LLC, 2017 NY Slip Op 30477[U] (Sup. Ct., Nassau County 2017).
12

12 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

i. 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 the Agreement states that:

“If Merchant's business slows down and Merchant's Future Receipts decrease or if
Merchant closes its business or ceases to process Payment Cards and Merchant has
not violated any of the representations, warranties and covenants provided in
Section 16 below, there shall be no default of this Agreement.” 17

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. The

Agreement, it clearly states that a filing of bankruptcy would not constitute a breach and as such

Plaintiff would not be able to bring an action against any of the Defendants.

Defendants have not requested a reconciliation, remitted financial statements to Plaintiff or

requested a reduction in payments. Rather Defendants are attempting to post facto change the

Agreement between the parties to a loan when it was a clear purchase of receivables.

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.

THE DEFENDANT NOT PROVIDED A PROPER EXCUSE FOR AN EXTENTION FOR
TIME TO FILE

CPLR 3012(d) allows a party to request an extension of time to appear or plead upon a showing

of a reasonable excuse for delay or fault. CPLR 2004 allows the court to extend the fixed time

17
See NYSCEF document number 2, page 5 paragraph 13.
13

13 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

upon a showing of good cause. A showing is required to extend time. Defendant has failed to

offer any excuse for delay or fault. Defendant has also not bothered to offer any showing of good

cause. This is part of the countless pre-answer motions filed by the defense bar that is only

designed to extend recourse to the Plaintiff.18 As in Propella Capital, the only objective here is a

delaying tactic as Defendants motion is based on meritless delaying assertions.

CONCLUSION

Finally, the Defendants also represent in the Agreement that it had the opportunity to

review the documents with an attorney. 19 For all the foregoing reasons, the Defendants’ pre-

answer motion to dismiss should be denied. The Court should immediately find 1) the parties

entered into valid forum selection and choice of law clauses; 2) that as a matter of law the

documentary evidence supports the Plaintiff’s allegation that the agreement was for the purchase

of contingent Receipts; 3) and that the Defendants be ordered to enter a response to Plaintiff’s

complaint within 10 days of entry of the order as there is no good cause for an extension to 30 days

pursuant to CPLR 2004.

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.

18
Propella Captial LLC v K&J Construction et al. (Index No. 152658/2022) (S. Ct. N.Y. Co.)
19
NYSCEF Doc. No. 2, page 6, paragraph 5.6.

14 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

Dated: Respectfully submitted,
Nassau County, New York
October 16, 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

15 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

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 3244, 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.

Dated: October 16, 2023 Respectfully submitted,
Nassau County, New York

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

16 of 17
FILED: NASSAU COUNTY CLERK 10/19/2023 04:04 PM INDEX NO. 608576/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023

________________________________________________________________________
Index No. 608576/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

VOX FUNDING LLC,

Plaintiff,

-against-

KELLER HAUS D/B/A LUXURY BATH OC AND KURT KELLER,

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

17 of 17

Case Info

Judge

Denise Sher Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 19, 2023

Case Filing Date

May 31, 2023

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Vox Funding Llc v. Keller Haus D/B/A LUXURY BATH OC, Kurt Keller

Preview

Related Topics

Case Info

Parties