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FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
STARSHIP HOLDINGS, LLC, et al.
Plaintiffs,
vs. Index No. 651427/2024
MAXBEN HOLDINGS, LLC, et al.
Defendants.
PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN
FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT IN LIEU OF COMPLAINT
SCHULMAN BHATTACHARYA, LLC
6116 Executive Boulevard, Suite 425
North Bethesda, Maryland 20852
and
240 West 40th Street, 2nd Floor
New York, NY 10018
Telephone: (240) 356-8550
Facsimile: (240) 356-8558
E-mail: kbhattacharya@schulmanbh.com
Counsel for Plaintiffs
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Plaintiffs Starship Holdings, LLC (“Starship”) and Roshmir, LLC (“Roshmir”) (together,
the “Lender”), by and through undersigned counsel, respectfully submit this reply memorandum
of law in further support of the Lender’s Motion for Summary Judgment in Lieu of Complaint (the
“Motion”) against Defendants Maxben Holdings, LLC (the “Borrower”) and Idin Dalpour (the
“Guarantor”) (together, “Defendants”).
PRELIMINARY STATEMENT1
In their best effort to defeat the Motion, Defendants offer the affidavit of their counsel,
John J. Thompson, Esq. (“Mr. Thompson”) dated April 2, 2024 (the “Thompson Affidavit”) in
which Mr. Thompson attests that Defendants lacked “sufficient advance notice” that their
“answering papers” were due on April 2, 2024.2 Mr. Thompson explains: the Motion was initially
“made returnable” on April 9, 20243 because the Lender intended to personally serve the
Guarantor, who serves as the Borrower’s sole Member and sole Manager,4 with the Motion at
Defendants’ New York office on March 19, 2024 (the “New York Office”),5 but the Lender
ultimately served the Motion on Defendants’ authorized agent at the New York Office on March
21, 2024 instead.6 Mr. Thompson argues that the Lender’s two-day delay in service strips the Court
1
Unless otherwise indicated, the Lender uses capitalized terms herein within the same manner and
meaning as in the Motion, NYSCEF No. 8, and the Affidavit of Koushik Bhattacharya (the
“Bhattacharya Aff.”) filed herewith.
2
NYSCEF No. 14 (the “Thompson Aff.”) ¶ 16.
3
Id. ¶¶ 5, 8.
4
NYSCEF No. 3 ¶¶ 5-6.
5
Bhattacharya Aff. ¶¶ 4-6.
6
NYSCEF No. 14 ¶ 9.
2
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of its “personal jurisdiction” over Defendants and its power to adjudicate the Motion.7 Mr.
Thompson is flatly incorrect.
Mr. Thompson has conceded the only relevant point; Defendants were properly served with
the Motion in New York.8 Mr. Thompson’s sworn opinion that the Motion’s proposed return date
of April 9, 2024 (the “Proposed Return Date”) provided his clients with inadequate time to respond
to the Motion carries no weight in this matter because Defendants waived any objection they could
have raised to the Motion’s “short service” when Defendants timely filed the Thompson Affidavit.
As Defendants have failed to oppose the Motion on any other grounds, the Court should grant the
Motion in its entirety.
RELEVANT UNDISPUTED FACTS9
The Lender respectfully directs the Court to the Affidavit of Milan Patel (the “Patel Aff.”)
filed in support of the Motion for the undisputed facts and copies of the uncontroverted instruments
that entitle the Lender to judgment as a matter of law against Defendants in the amount requested,
NYSCEF No. 3, and to the Bhattacharya Aff. filed herewith for the relevant procedural history of
this action.
7
NYSCEF No. 14 ¶ 9.
8
Id. ¶¶ 9, 12.
9
As set forth infra, because Defendants have failed to deny the facts to which Mr. Patel attested
in in the Patel Aff., all material facts in the Motion are “deemed admitted.” See Carlyle, LLC v.
Quik Park Beekman II, LLC, 59 Misc. 3d 35, 38, 74 N.Y.S.3d 434, 437 (2d Dep’t 2018).
3
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ARGUMENT
I. The Court Should Grant the Motion.
A. The Court Has Personal Jurisdiction Over Defendants.
CPLR 3213 was enacted to “provide a speedy and effective means” for resolving
“presumptively meritorious” claims for “actions based upon an instrument for the payment of
money.” Banco Popular N. Am. v. Victory Taxi Mgmt., Inc., 1 N.Y.3d 381, 383, 806 N.E.2d 488,
490 (2004) (internal citation omitted). To that end, the mandate of CPLR 3213 (a) is clear: a
defendant must enter its appearance “within twenty days after service” of a CPLR 3213 motion.
Ross Bicycles, Inc. v. Citibank, N.A., 149 A.D.2d 330, 331, 539 N.Y.S.2d 906, 908 (1st Dep’t
1989). Since “CPLR 3213 expressly incorporates” CPLR 320(a)’s statutory time limits for service,
the Court can easily calculate the defendant’s response time when a plaintiff personally serves the
defendant with a CPLR 3213 motion in the State of New York: the defendant “ha[s] twenty days
in which to respond.” Ross, 149 A.D.2d at 331. Where, as here, a plaintiff files a CPLR 3213
motion against a foreign LLC that conducts business in New York,10 the defendant must respond
to the motion within twenty (20) days as long as the plaintiff “personally” serves the motion on
“any member” or “any manager” of the LLC or “any other person” who is authorized to accept
service on the LLC’s behalf “in this state.” See CPLR § 311-a.
However: “[w]hen a plaintiff uses other than personal delivery for service of a CPLR 3213
motion, the multiple acts and filing required for alternate methods of service make it exceedingly
difficult for the plaintiff to calculate the response time accurately, because a return date must be
selected and specified in the moving papers before service is effected.” Plaza 400 Owners Corp.
v. Resnicoff, 168 Misc. 2d 837, 841, 640 N.Y.S.2d 984 (Civ. Ct. 1996); see also Goldstein v.
10
NYSCEF No. 3 ¶¶ 4-5.
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Saltzman, 13 Misc. 3d 1023, 1025, 821 N.Y.S.2d 746, 747 (Sup. Ct. 2006) (“in a 3213 motion, the
minimum amount of time the plaintiff must give the defendant to appear and oppose the motion is
dependent upon the date and method of service”).
The Lender (consistent with the CPLR) thus proposed that the Court hear the Motion on
April 9, 2024, with Defendants’ answering papers due on April 2, 2024, NYSCEF No. 2, under
the assumption that Defendants’ counsel would contact the Lender’s counsel to request a short
“continuance or adjournment” of the Proposed Return Date if Defendants required additional time
to respond to the Motion. See Sea Trade Mar. Corp. v. Coutsodontis, 111 A.D.3d 483, 486, 978
N.Y.S.2d 115, 118 (1st Dep’t 2013). The Lender further assumed that, once the Lender
accomplished service on Defendants, the Lender would have adequate time to file an amended
Notice of Motion extending the Proposed Return Date (if necessary) to account for the method and
place of service and the individual upon whom the Motion was served. See, e.g., Blue Lagoon,
LLC v. Reisman, 214 A.D.3d 938, 941, 186 N.Y.S.3d 304, 307 (2d Dep’t 2023).
As Mr. Thompson accurately attests, the Lender’s process server was unable to locate and
serve the Guarantor (who has a history of evading service) with the Motion and instead personally
served Defendants’ authorized agent with the Motion at the New York Office on March 21, 2024.
NYSCEF No. 14 ¶ 9; NYSCEF No. 11; NYSCEF No. 12; Bhattacharya Aff. ¶¶ 5-7. To ensure that
Defendants had adequate notice of the Motion, the Lender also mailed the Motion to Defendants
on March 21, 2024 and emailed the Motion directly to Mr. Thompson on March 27, 2024.
NYSCEF No. 14 ¶ 9; Bhattacharya Aff. ¶¶ 8-9.
Instead of requesting that the Lender provide Defendants with additional time to respond
to the Motion,11 see Sea Trade, 111 A.D.3d at 486, Mr. Thompson chose to timely file the
11
Bhattacharya Aff. ¶¶ 9-10.
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Thompson Affidavit and attest that the Court “must” deny the Motion and “dismiss” this
proceeding because Mr. Thompson believes that “the earliest date” that Defendants “could have
noticed the Motion” to be heard “is May 6, 2024,” which Mr. Thompson suggests defeats the
Court’s “personal jurisdiction” over Defendants. NYSCEF No. 10 ¶¶ 14-15. Mr. Thompson
misunderstands the law.
There are two “components and constitutional predicates of personal jurisdiction:” 1)
“service of process, which implicates due process requirements of notice and opportunity to be
heard;” and 2) “the power, or reach, of a court over a party, so as to enforce judicial decrees.”
Keane v. Kamin, 94 N.Y.2d 263, 265, 723 N.E.2d 553, 554 (1999) (citing CPLR 301, 302 & 308).
The second “consideration—the jurisdictional basis—is independent of service of process.”
Keane, 94 N.Y.2d at 265.
Upon executing the Guaranty, the Guarantor “irrevocably consent[ed]” to the Court’s
jurisdiction.12 The Court does not require anything “beyond contractual consent” to exercise
personal jurisdiction over the Guarantor. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Worley,
257 A.D.2d 228, 231, 690 N.Y.S.2d 57, 59 (1st Dep’t 1999); Gryphon Domestic VI, LLC v. APP
Int’l Fin. Co., B.V., 41 A.D.3d 25, 27, 836 N.Y.S.2d 4, 6 (1st Dep’t 2007) (court has personal
jurisdiction over a guarantor who “contractually consented to personal jurisdiction” of New York
state courts). As the Guarantor resides in New York,13 the Guarantor is subject to the Court’s
personal jurisdiction, regardless. See CPLR 302(a)(1).
12
NYSCEF No. 6 ¶ 8 (the “Guarantor irrevocably consents” to the jurisdiction of “the state and
federal courts of New York, whichever [the] Lender may elect” ).
13
NYSCEF No. 3 ¶¶ NYSCEF No. 8 at 3, n. 5.
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The Borrower is equally subject to the Court’s personal jurisdiction, as the Borrower is
“headquartered in New York”14 and conducts business from “its own New York office.” See Eng.
v. Avon Prod., Inc., 206 A.D.3d 404, 407, 169 N.Y.S.3d 300, 305 (1st Dep’t 2022); Grimaldi v.
Guinn, 72 A.D.3d 37, 44, 895 N.Y.S.2d 156, 162 (2d Dep’t 2010) (“proof of one transaction in
New York is sufficient”).
Defendants thus cannot contest the Court’s power to adjudicate the Motion; instead, Mr.
Thompson is limited to arguing that the Lender’s “service of process” provided Defendants with
insufficient “notice” of the Motion and its Proposed Hearing Date. See Keane, at 265. Mr.
Thompson’s argument is meritless.
Where, as here, a plaintiff personally serves a CPLR 3213 motion on a defendant’s
authorized agent in New York, service is deemed effective on the date of service. See CPLR §§
308, 311-a, 318 & 2303; Ross, at 331. Accordingly, if the Court calculated the Motion’s return
date based on the date that the Lender served Defendants’ agent with the Motion at the New York
Office, Defendants’ opposition papers would be due on April 10, 2024.
Where, as here, a plaintiff serves a CPLR 3213 motion on a defendant’s counsel via email,
service is deemed effective on the date the email was sent. See CPLR 2103(b)(2); Gallant Funding
v. Tocci, 34 Misc.3d 1220(A), 5 (Sup. Ct., Kings County 2011). Accordingly, if the Court
calculated the Motion’s return date based on the date the Lender emailed the Motion to Mr.
Thompson, Defendants’ opposition papers would be due on April 16, 2024.
Instead, as Mr. Thompson attests, the Motion proposed that Defendants file their
opposition papers on April 2, 2024, which Mr. Thompson attests provided Defendants with
insufficient “advance notice of” the Motion. NYSCEF No. 14 ¶ 16. Mr. Thompson’s timely filing
14
NYSCEF No. 3 ¶¶ 5-6; NYSCEF No. 8 at 3, n. 5.
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of the Thompson Affidavit on April 2, 2024 defeats his own argument; since Defendants plainly
had adequate notice of the Motion, the Motion’s “short service” is “deemed waived.” Plaza 400,
168 Misc. 2d at 839 (citing Todd v. Gull Contracting Co., 22 A.D.2d 904, 255 N.Y.S.2d 452 (2d
Dep’t 1964); ICICI Bank UK PLC Antwerp Branch v. Manilal, 2020 NY Slip Op 31606(U), ¶ 9
(Sup. Ct. N.Y. Cty. 2020) (“where a defendant appears and opposes [a] motion… the court may
disregard the fact that the return date did not satisfy the time requirements set forth in CPLR
3213”).
That is the case because “untimely notices are not jurisdictional defects [that] require
dismissal of the action” but are instead “an irregularity which should be disregarded unless there
is substantial prejudice to a party.” Nat’l Microtech, Inc. v. Satellite Video Servs., Inc., 107 A.D.2d
860, 861, 484 N.Y.S.2d 303, 304 (3d Dep’t 1985) (cleaned up). Here, Defendants are “not
prejudiced” by the Lender’s alleged “failure to provide timely notice” of the Motion for an obvious
reason: Defendants “prepared a response” to the Motion before the Proposed Return Date. Nat’l
Microtech, 107 A.D.2d at 861; accord Glasz v. Glasz, 173 A.D.2d 937, 938, 569 N.Y.S.2d 801,
803 (3d Dep’t 1991); Plaza 400, 640 N.Y.S.2d at 988. Mr. Thompson’s proffered precedent fails
to establish otherwise.
After providing a string cite of unreported cases that have no precedential value, NYSCEF
No. 14 ¶¶ 8, 13, 16, Mr. Thompson relies exclusively on the Second Department’s decision in
Bhanti v. Jha, 140 A.D.3d 685 (2d Dep’t 2016) for his argument that the Proposed Return Date
qualifies as “a fatal jurisdictional defect.” Id. ¶ 8. Mr. Thompson’s reliance is misplaced: “[t]o the
extent that Bhanti can be interpreted as finding an improper return date to be a fatal jurisdictional
defect in all circumstances, it is superseded by a more recent Second Department decision, Blue
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Lagoon, LLC v. Reisman, 214 A.D.3d 938, 941-42 (2d Dep’t 2023).”’ Quartix Finance Inc. v. KSH
Brands LLC, No. 654957/2022, 2023 WL 4464105, at *5 (Sup. Ct. N.Y. Cty. July 10, 2023).
In Blue Lagoon, the Court considered a “plaintiff’s original notice of motion for summary
judgment in lieu of complaint” that “provided inadequate time within which the defendants could
file answering papers” and held that “the plaintiff’s failure to provide an adequate return date on
its original notice of motion was not a fatal defect that deprived the Supreme Court of jurisdiction
over the action.” 214 A.D.3d at 941. As the Blue Lagoon Court reasoned, that was the case because
the defendants did not “dispute[] receiving the summons and original notice of motion and
supporting papers” and “the defendants’ affidavits establish[ed] that they were on notice of the
plaintiff’s motion.” Id. The result should be no different here.
As Mr. Thompson attests, Defendants not only received notice of the Motion but concede
that their authorized agent was personally served with the Summons, the Motion, and the
supporting papers (collectively, the “Motion Papers”) in New York and that Defendants received
the Motion Papers via certified mail. NYSCEF No. 14 ¶ 9. Mr. Thompson has thus attested to the
Court’s personal jurisdiction over Defendants and the Court’s power to adjudicate the Motion. See
Blue Lagoon, at 941; accord Capolino v Goren, 155 AD3d 1414, 1415-16 (3d Dep’t 2017)
(holding that the Court had personal jurisdiction over the defendants because plaintiff’s defective
service did not frustrate notice to the defendants).
Mr. Thompson has also conceded that the Court should grant the Motion in the entirety.
A. Defendants Have Failed to Raise a Triable Fact Issue on a Bona Fide
Defense to the Motion.
As the Motion made clear, the Lender established its prima facie entitlement to judgment
as a matter of law against Defendants by submitting copies of the Loan and the Patel Aff. attesting
to Defendants’ nonpayment of the Loan. NYSCEF No. 8 at 5 (citing I.P.L. Corp. v. Indus. Power
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& Lighting Corp., 202 A.D.2d 1029, 1029, 609 N.Y.S.2d 472, 472–73 (4th Dep’t 1994)). To defeat
the Motion, Defendants were required to “come forward with evidentiary proof showing the
existence of a triable issue of fact with respect to a bona fide defense” to their nonpayment of the
Loan. NYSCEF No. 8 at 5 (citing Wehle v. Moroczko, 151 A.D.3d 1846, 1846–47, 57 N.Y.S.3d
322, 323 (4th Dep’t 2017)). Instead, Defendants filed the Thompson Affidavit, which fails to deny
that Defendants have refused to pay the Loan and is insufficient to defeat the Motion as a matter
of law, regardless. See In re Coviello, 78 A.D.3d 696, 697–98, 911 N.Y.S.2d 106, 107 (2d Dep’t
2010).
Where, as here, a defendant fails to personally deny the facts to which the plaintiff has
attested in support of its motion, all material facts in the motion are “deemed admitted.” See
Carlyle, 59 Misc. 3d at 38; accord Hermitage Ins. Co. v. Athena Mgmt. Corp., 115 A.D.3d 628,
629, 983 N.Y.S.2d 218, 219 (1st Dep’t 2014). As Defendants have made no effort to contest the
Lender’s damages calculations, the Lender is entitled to judgment against Defendants in the
amount requested in the Motion. See Ocelot Cap. Mgmt., LLC v. Hershkovitz, 90 A.D.3d 464, 465,
934 N.Y.S.2d 146, 148 (1st Dep’t 2011) (affirming trial court’s grant of summary judgment in
favor of promissory note holder where borrower failed to oppose plaintiff’s damages calculations:
“that the [borrower] was obligated to pay it $350,000, as per the terms of the original note, was
appropriately deemed by the motion court to be admitted”).
CONCLUSION
For the aforementioned reasons, this Court should GRANT the Lender’s Motion; enter
judgment in favor of Plaintiffs and against Defendants in the amount of $10,514,250.00; and award
any further relief as the Court deems just and proper.
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Dated: April 5, 2024
Respectfully submitted,
SCHULMAN BHATTACHARYA, LLC
By: /s/ Koushik Bhattacharya
Jeremy W. Schulman (NYSB No. 2864494)
Koushik Bhattacharya (NYSB No. 5936000)
6116 Executive Boulevard, Suite 425
North Bethesda, Maryland 20852
and
240 West 40th Street, 2nd Floor
New York, NY 10018
Tel.: (240) 356-8550
Facsimile: (240) 356-8558
Email: jschulman@schulmanbh.com
kbhattacharya@schulmanbh.com
Counsel for Plaintiffs
WORD COUNT CERTIFICATION
I certify that the foregoing memorandum of law complies with the word-count limitation
in Rule 17 of the Rules of Practice for the Commercial Division (22 NYCRR § 202.70 (g)) because
it contains 2,754 words, exclusive of the cover page and signature block. In making this
certification, I rely on the word-count feature of Microsoft Word, which was used to prepare the
document.
/s/ Koushik Bhattacharya
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Preview
FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY STARSHIP HOLDINGS, LLC, et al. Plaintiffs, vs. Index No. 651427/2024 MAXBEN HOLDINGS, LLC, et al. Defendants. PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT SCHULMAN BHATTACHARYA, LLC 6116 Executive Boulevard, Suite 425 North Bethesda, Maryland 20852 and 240 West 40th Street, 2nd Floor New York, NY 10018 Telephone: (240) 356-8550 Facsimile: (240) 356-8558 E-mail: kbhattacharya@schulmanbh.com Counsel for Plaintiffs 1 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 Plaintiffs Starship Holdings, LLC (“Starship”) and Roshmir, LLC (“Roshmir”) (together, the “Lender”), by and through undersigned counsel, respectfully submit this reply memorandum of law in further support of the Lender’s Motion for Summary Judgment in Lieu of Complaint (the “Motion”) against Defendants Maxben Holdings, LLC (the “Borrower”) and Idin Dalpour (the “Guarantor”) (together, “Defendants”). PRELIMINARY STATEMENT1 In their best effort to defeat the Motion, Defendants offer the affidavit of their counsel, John J. Thompson, Esq. (“Mr. Thompson”) dated April 2, 2024 (the “Thompson Affidavit”) in which Mr. Thompson attests that Defendants lacked “sufficient advance notice” that their “answering papers” were due on April 2, 2024.2 Mr. Thompson explains: the Motion was initially “made returnable” on April 9, 20243 because the Lender intended to personally serve the Guarantor, who serves as the Borrower’s sole Member and sole Manager,4 with the Motion at Defendants’ New York office on March 19, 2024 (the “New York Office”),5 but the Lender ultimately served the Motion on Defendants’ authorized agent at the New York Office on March 21, 2024 instead.6 Mr. Thompson argues that the Lender’s two-day delay in service strips the Court 1 Unless otherwise indicated, the Lender uses capitalized terms herein within the same manner and meaning as in the Motion, NYSCEF No. 8, and the Affidavit of Koushik Bhattacharya (the “Bhattacharya Aff.”) filed herewith. 2 NYSCEF No. 14 (the “Thompson Aff.”) ¶ 16. 3 Id. ¶¶ 5, 8. 4 NYSCEF No. 3 ¶¶ 5-6. 5 Bhattacharya Aff. ¶¶ 4-6. 6 NYSCEF No. 14 ¶ 9. 2 2 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 of its “personal jurisdiction” over Defendants and its power to adjudicate the Motion.7 Mr. Thompson is flatly incorrect. Mr. Thompson has conceded the only relevant point; Defendants were properly served with the Motion in New York.8 Mr. Thompson’s sworn opinion that the Motion’s proposed return date of April 9, 2024 (the “Proposed Return Date”) provided his clients with inadequate time to respond to the Motion carries no weight in this matter because Defendants waived any objection they could have raised to the Motion’s “short service” when Defendants timely filed the Thompson Affidavit. As Defendants have failed to oppose the Motion on any other grounds, the Court should grant the Motion in its entirety. RELEVANT UNDISPUTED FACTS9 The Lender respectfully directs the Court to the Affidavit of Milan Patel (the “Patel Aff.”) filed in support of the Motion for the undisputed facts and copies of the uncontroverted instruments that entitle the Lender to judgment as a matter of law against Defendants in the amount requested, NYSCEF No. 3, and to the Bhattacharya Aff. filed herewith for the relevant procedural history of this action. 7 NYSCEF No. 14 ¶ 9. 8 Id. ¶¶ 9, 12. 9 As set forth infra, because Defendants have failed to deny the facts to which Mr. Patel attested in in the Patel Aff., all material facts in the Motion are “deemed admitted.” See Carlyle, LLC v. Quik Park Beekman II, LLC, 59 Misc. 3d 35, 38, 74 N.Y.S.3d 434, 437 (2d Dep’t 2018). 3 3 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 ARGUMENT I. The Court Should Grant the Motion. A. The Court Has Personal Jurisdiction Over Defendants. CPLR 3213 was enacted to “provide a speedy and effective means” for resolving “presumptively meritorious” claims for “actions based upon an instrument for the payment of money.” Banco Popular N. Am. v. Victory Taxi Mgmt., Inc., 1 N.Y.3d 381, 383, 806 N.E.2d 488, 490 (2004) (internal citation omitted). To that end, the mandate of CPLR 3213 (a) is clear: a defendant must enter its appearance “within twenty days after service” of a CPLR 3213 motion. Ross Bicycles, Inc. v. Citibank, N.A., 149 A.D.2d 330, 331, 539 N.Y.S.2d 906, 908 (1st Dep’t 1989). Since “CPLR 3213 expressly incorporates” CPLR 320(a)’s statutory time limits for service, the Court can easily calculate the defendant’s response time when a plaintiff personally serves the defendant with a CPLR 3213 motion in the State of New York: the defendant “ha[s] twenty days in which to respond.” Ross, 149 A.D.2d at 331. Where, as here, a plaintiff files a CPLR 3213 motion against a foreign LLC that conducts business in New York,10 the defendant must respond to the motion within twenty (20) days as long as the plaintiff “personally” serves the motion on “any member” or “any manager” of the LLC or “any other person” who is authorized to accept service on the LLC’s behalf “in this state.” See CPLR § 311-a. However: “[w]hen a plaintiff uses other than personal delivery for service of a CPLR 3213 motion, the multiple acts and filing required for alternate methods of service make it exceedingly difficult for the plaintiff to calculate the response time accurately, because a return date must be selected and specified in the moving papers before service is effected.” Plaza 400 Owners Corp. v. Resnicoff, 168 Misc. 2d 837, 841, 640 N.Y.S.2d 984 (Civ. Ct. 1996); see also Goldstein v. 10 NYSCEF No. 3 ¶¶ 4-5. 4 4 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 Saltzman, 13 Misc. 3d 1023, 1025, 821 N.Y.S.2d 746, 747 (Sup. Ct. 2006) (“in a 3213 motion, the minimum amount of time the plaintiff must give the defendant to appear and oppose the motion is dependent upon the date and method of service”). The Lender (consistent with the CPLR) thus proposed that the Court hear the Motion on April 9, 2024, with Defendants’ answering papers due on April 2, 2024, NYSCEF No. 2, under the assumption that Defendants’ counsel would contact the Lender’s counsel to request a short “continuance or adjournment” of the Proposed Return Date if Defendants required additional time to respond to the Motion. See Sea Trade Mar. Corp. v. Coutsodontis, 111 A.D.3d 483, 486, 978 N.Y.S.2d 115, 118 (1st Dep’t 2013). The Lender further assumed that, once the Lender accomplished service on Defendants, the Lender would have adequate time to file an amended Notice of Motion extending the Proposed Return Date (if necessary) to account for the method and place of service and the individual upon whom the Motion was served. See, e.g., Blue Lagoon, LLC v. Reisman, 214 A.D.3d 938, 941, 186 N.Y.S.3d 304, 307 (2d Dep’t 2023). As Mr. Thompson accurately attests, the Lender’s process server was unable to locate and serve the Guarantor (who has a history of evading service) with the Motion and instead personally served Defendants’ authorized agent with the Motion at the New York Office on March 21, 2024. NYSCEF No. 14 ¶ 9; NYSCEF No. 11; NYSCEF No. 12; Bhattacharya Aff. ¶¶ 5-7. To ensure that Defendants had adequate notice of the Motion, the Lender also mailed the Motion to Defendants on March 21, 2024 and emailed the Motion directly to Mr. Thompson on March 27, 2024. NYSCEF No. 14 ¶ 9; Bhattacharya Aff. ¶¶ 8-9. Instead of requesting that the Lender provide Defendants with additional time to respond to the Motion,11 see Sea Trade, 111 A.D.3d at 486, Mr. Thompson chose to timely file the 11 Bhattacharya Aff. ¶¶ 9-10. 5 5 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 Thompson Affidavit and attest that the Court “must” deny the Motion and “dismiss” this proceeding because Mr. Thompson believes that “the earliest date” that Defendants “could have noticed the Motion” to be heard “is May 6, 2024,” which Mr. Thompson suggests defeats the Court’s “personal jurisdiction” over Defendants. NYSCEF No. 10 ¶¶ 14-15. Mr. Thompson misunderstands the law. There are two “components and constitutional predicates of personal jurisdiction:” 1) “service of process, which implicates due process requirements of notice and opportunity to be heard;” and 2) “the power, or reach, of a court over a party, so as to enforce judicial decrees.” Keane v. Kamin, 94 N.Y.2d 263, 265, 723 N.E.2d 553, 554 (1999) (citing CPLR 301, 302 & 308). The second “consideration—the jurisdictional basis—is independent of service of process.” Keane, 94 N.Y.2d at 265. Upon executing the Guaranty, the Guarantor “irrevocably consent[ed]” to the Court’s jurisdiction.12 The Court does not require anything “beyond contractual consent” to exercise personal jurisdiction over the Guarantor. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Worley, 257 A.D.2d 228, 231, 690 N.Y.S.2d 57, 59 (1st Dep’t 1999); Gryphon Domestic VI, LLC v. APP Int’l Fin. Co., B.V., 41 A.D.3d 25, 27, 836 N.Y.S.2d 4, 6 (1st Dep’t 2007) (court has personal jurisdiction over a guarantor who “contractually consented to personal jurisdiction” of New York state courts). As the Guarantor resides in New York,13 the Guarantor is subject to the Court’s personal jurisdiction, regardless. See CPLR 302(a)(1). 12 NYSCEF No. 6 ¶ 8 (the “Guarantor irrevocably consents” to the jurisdiction of “the state and federal courts of New York, whichever [the] Lender may elect” ). 13 NYSCEF No. 3 ¶¶ NYSCEF No. 8 at 3, n. 5. 6 6 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 The Borrower is equally subject to the Court’s personal jurisdiction, as the Borrower is “headquartered in New York”14 and conducts business from “its own New York office.” See Eng. v. Avon Prod., Inc., 206 A.D.3d 404, 407, 169 N.Y.S.3d 300, 305 (1st Dep’t 2022); Grimaldi v. Guinn, 72 A.D.3d 37, 44, 895 N.Y.S.2d 156, 162 (2d Dep’t 2010) (“proof of one transaction in New York is sufficient”). Defendants thus cannot contest the Court’s power to adjudicate the Motion; instead, Mr. Thompson is limited to arguing that the Lender’s “service of process” provided Defendants with insufficient “notice” of the Motion and its Proposed Hearing Date. See Keane, at 265. Mr. Thompson’s argument is meritless. Where, as here, a plaintiff personally serves a CPLR 3213 motion on a defendant’s authorized agent in New York, service is deemed effective on the date of service. See CPLR §§ 308, 311-a, 318 & 2303; Ross, at 331. Accordingly, if the Court calculated the Motion’s return date based on the date that the Lender served Defendants’ agent with the Motion at the New York Office, Defendants’ opposition papers would be due on April 10, 2024. Where, as here, a plaintiff serves a CPLR 3213 motion on a defendant’s counsel via email, service is deemed effective on the date the email was sent. See CPLR 2103(b)(2); Gallant Funding v. Tocci, 34 Misc.3d 1220(A), 5 (Sup. Ct., Kings County 2011). Accordingly, if the Court calculated the Motion’s return date based on the date the Lender emailed the Motion to Mr. Thompson, Defendants’ opposition papers would be due on April 16, 2024. Instead, as Mr. Thompson attests, the Motion proposed that Defendants file their opposition papers on April 2, 2024, which Mr. Thompson attests provided Defendants with insufficient “advance notice of” the Motion. NYSCEF No. 14 ¶ 16. Mr. Thompson’s timely filing 14 NYSCEF No. 3 ¶¶ 5-6; NYSCEF No. 8 at 3, n. 5. 7 7 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 of the Thompson Affidavit on April 2, 2024 defeats his own argument; since Defendants plainly had adequate notice of the Motion, the Motion’s “short service” is “deemed waived.” Plaza 400, 168 Misc. 2d at 839 (citing Todd v. Gull Contracting Co., 22 A.D.2d 904, 255 N.Y.S.2d 452 (2d Dep’t 1964); ICICI Bank UK PLC Antwerp Branch v. Manilal, 2020 NY Slip Op 31606(U), ¶ 9 (Sup. Ct. N.Y. Cty. 2020) (“where a defendant appears and opposes [a] motion… the court may disregard the fact that the return date did not satisfy the time requirements set forth in CPLR 3213”). That is the case because “untimely notices are not jurisdictional defects [that] require dismissal of the action” but are instead “an irregularity which should be disregarded unless there is substantial prejudice to a party.” Nat’l Microtech, Inc. v. Satellite Video Servs., Inc., 107 A.D.2d 860, 861, 484 N.Y.S.2d 303, 304 (3d Dep’t 1985) (cleaned up). Here, Defendants are “not prejudiced” by the Lender’s alleged “failure to provide timely notice” of the Motion for an obvious reason: Defendants “prepared a response” to the Motion before the Proposed Return Date. Nat’l Microtech, 107 A.D.2d at 861; accord Glasz v. Glasz, 173 A.D.2d 937, 938, 569 N.Y.S.2d 801, 803 (3d Dep’t 1991); Plaza 400, 640 N.Y.S.2d at 988. Mr. Thompson’s proffered precedent fails to establish otherwise. After providing a string cite of unreported cases that have no precedential value, NYSCEF No. 14 ¶¶ 8, 13, 16, Mr. Thompson relies exclusively on the Second Department’s decision in Bhanti v. Jha, 140 A.D.3d 685 (2d Dep’t 2016) for his argument that the Proposed Return Date qualifies as “a fatal jurisdictional defect.” Id. ¶ 8. Mr. Thompson’s reliance is misplaced: “[t]o the extent that Bhanti can be interpreted as finding an improper return date to be a fatal jurisdictional defect in all circumstances, it is superseded by a more recent Second Department decision, Blue 8 8 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 Lagoon, LLC v. Reisman, 214 A.D.3d 938, 941-42 (2d Dep’t 2023).”’ Quartix Finance Inc. v. KSH Brands LLC, No. 654957/2022, 2023 WL 4464105, at *5 (Sup. Ct. N.Y. Cty. July 10, 2023). In Blue Lagoon, the Court considered a “plaintiff’s original notice of motion for summary judgment in lieu of complaint” that “provided inadequate time within which the defendants could file answering papers” and held that “the plaintiff’s failure to provide an adequate return date on its original notice of motion was not a fatal defect that deprived the Supreme Court of jurisdiction over the action.” 214 A.D.3d at 941. As the Blue Lagoon Court reasoned, that was the case because the defendants did not “dispute[] receiving the summons and original notice of motion and supporting papers” and “the defendants’ affidavits establish[ed] that they were on notice of the plaintiff’s motion.” Id. The result should be no different here. As Mr. Thompson attests, Defendants not only received notice of the Motion but concede that their authorized agent was personally served with the Summons, the Motion, and the supporting papers (collectively, the “Motion Papers”) in New York and that Defendants received the Motion Papers via certified mail. NYSCEF No. 14 ¶ 9. Mr. Thompson has thus attested to the Court’s personal jurisdiction over Defendants and the Court’s power to adjudicate the Motion. See Blue Lagoon, at 941; accord Capolino v Goren, 155 AD3d 1414, 1415-16 (3d Dep’t 2017) (holding that the Court had personal jurisdiction over the defendants because plaintiff’s defective service did not frustrate notice to the defendants). Mr. Thompson has also conceded that the Court should grant the Motion in the entirety. A. Defendants Have Failed to Raise a Triable Fact Issue on a Bona Fide Defense to the Motion. As the Motion made clear, the Lender established its prima facie entitlement to judgment as a matter of law against Defendants by submitting copies of the Loan and the Patel Aff. attesting to Defendants’ nonpayment of the Loan. NYSCEF No. 8 at 5 (citing I.P.L. Corp. v. Indus. Power 9 9 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 & Lighting Corp., 202 A.D.2d 1029, 1029, 609 N.Y.S.2d 472, 472–73 (4th Dep’t 1994)). To defeat the Motion, Defendants were required to “come forward with evidentiary proof showing the existence of a triable issue of fact with respect to a bona fide defense” to their nonpayment of the Loan. NYSCEF No. 8 at 5 (citing Wehle v. Moroczko, 151 A.D.3d 1846, 1846–47, 57 N.Y.S.3d 322, 323 (4th Dep’t 2017)). Instead, Defendants filed the Thompson Affidavit, which fails to deny that Defendants have refused to pay the Loan and is insufficient to defeat the Motion as a matter of law, regardless. See In re Coviello, 78 A.D.3d 696, 697–98, 911 N.Y.S.2d 106, 107 (2d Dep’t 2010). Where, as here, a defendant fails to personally deny the facts to which the plaintiff has attested in support of its motion, all material facts in the motion are “deemed admitted.” See Carlyle, 59 Misc. 3d at 38; accord Hermitage Ins. Co. v. Athena Mgmt. Corp., 115 A.D.3d 628, 629, 983 N.Y.S.2d 218, 219 (1st Dep’t 2014). As Defendants have made no effort to contest the Lender’s damages calculations, the Lender is entitled to judgment against Defendants in the amount requested in the Motion. See Ocelot Cap. Mgmt., LLC v. Hershkovitz, 90 A.D.3d 464, 465, 934 N.Y.S.2d 146, 148 (1st Dep’t 2011) (affirming trial court’s grant of summary judgment in favor of promissory note holder where borrower failed to oppose plaintiff’s damages calculations: “that the [borrower] was obligated to pay it $350,000, as per the terms of the original note, was appropriately deemed by the motion court to be admitted”). CONCLUSION For the aforementioned reasons, this Court should GRANT the Lender’s Motion; enter judgment in favor of Plaintiffs and against Defendants in the amount of $10,514,250.00; and award any further relief as the Court deems just and proper. 10 10 of 11 FILED: NEW YORK COUNTY CLERK 04/05/2024 11:03 AM INDEX NO. 651427/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/05/2024 Dated: April 5, 2024 Respectfully submitted, SCHULMAN BHATTACHARYA, LLC By: /s/ Koushik Bhattacharya Jeremy W. Schulman (NYSB No. 2864494) Koushik Bhattacharya (NYSB No. 5936000) 6116 Executive Boulevard, Suite 425 North Bethesda, Maryland 20852 and 240 West 40th Street, 2nd Floor New York, NY 10018 Tel.: (240) 356-8550 Facsimile: (240) 356-8558 Email: jschulman@schulmanbh.com kbhattacharya@schulmanbh.com Counsel for Plaintiffs WORD COUNT CERTIFICATION I certify that the foregoing memorandum of law complies with the word-count limitation in Rule 17 of the Rules of Practice for the Commercial Division (22 NYCRR § 202.70 (g)) because it contains 2,754 words, exclusive of the cover page and signature block. In making this certification, I rely on the word-count feature of Microsoft Word, which was used to prepare the document. /s/ Koushik Bhattacharya 11 11 of 11