DMKA LLC v. Guerrero

2024 NY Slip Op 33559(U)

Opinion

DMKA LLC v Guerrero 2024 NY Slip Op 33559(U)

October 7, 2024

Supreme Court, Kings County Docket Number: Index No. 524910/2023 Judge: Richard Velasquez

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.

FILED: KINGS COUNTY CLERK 10/07/2024 02:28 PM INDEX NO. 524910/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/07/2024

At an lAS

IAS Term, Part 66 of

Term, Part the Supreme.

ofthe Supreme

Court Court of the State

of the State of New York, of New York, held

held in

and for the and the County

County of of Kings,

Kings, at the

Courthouse, at 360 Courthouse, 360 Adams Adams Street,

Street,

Brooklyn, New Brooklyn, New York, the 7thth day of York, on the of October, 2024 October, 2024

PRES PRE SEN ENT: T: HON. RICHAR

RICHARDD VELASQUEZ

VELASQ UEZ

. Ju?tice.

Justice. . I ----------- ----------- ----------- ----------- --------------------------~------X ----------------------------------------~-------~---------------------~------)( I

DMKA DMKA LLC D/B/A D/B/A THETHE SMARTE SMARTERR MERCH MERCHANT, ANT,

Plaintiff, Plaintiff, Index Index No.: 524910/

524910/2023

2023

-against- -against- Decision Decision and Order

Order

Mot. Seq. No.

No.1'1 '

ROGELI ROGELIO O GUERR ERO D/B/A GUERRERO D/B/A ADVANCED ADVANCED

PERFOR MANCE AUTOMOTIVE PERFORMANCE AUTOMOTIVE CENTER CENTER D/8/A

D/B/A

ADVANC ADVANCEDED PERFOR MANCE AUTOMOTIVE PERFORMANCE AUTOMOTIVE CENT CENT

D/B/A APAC D/B/A APAC D/8/A APAC AUTOMOTIVE D/B/A APAC AUTOMOTIVE D/B/A D/B/A

ADVANCED PERFOR ADVANCED MANCE AUTO PERFORMANCE AUTO CENTE CENTERet al."

Ret al.,,

Defenda nts, Defendants,

----------- -------------------------------------------- ----------------------X ------------------------------------------------------------------------------)(

The The following

following papers

papers NYSCEF

NYSCEF Doc #'s 11

#'s 11 to 17 read on this this motion:

motion:

Papers Papers I NYSCEF DOC NYSCEF DOC NO. 's

Notice Notice of Motion/O

Motion/Orderrder to Show

Show Cause

Cause

Affidavits (Affirmat Affidavits ions) Annexed (Affirmations) Annexed _ _ _ _ _ _ _ __ _ 11-15 Opposin Opposingg Affidavit

Affidavitss (Affirmat ions) _ _ _ _ _ _ _ __ (Affirmations) _ 16-17 16-17

Reply Affidavits_ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ Reply Affidavits

,\ After

After having come before

having come the Court before the Court and the court court having

having heard

heard oral argument t on

oral argumen on

June June 12,

12, 2024

2024 and upon

upon a review

review of

of the forgoing

forgoing the court

court finds

finds as follows:

follows:

Defenda nts move Defendants move pursuan

pursuant t to CPLR

CPLR §3211

93211 (a)(7),

(a)(7), and (a)(8)

(a)(8) for

for an order"

order•' i , I

ii ii

dismissin dismissingg the complaint, or extension the complaint, extension of of time

time to answer (MS#1).). Plaintiff answer (MS#1 Plaintiff opposes opposes the

the

same. same.

In In consider ing a motiontt considering motiondoo dismiss dismiss a complain

complaint t pursuan

pur~uantt to CPLR

CPLR 3211 (a)

(a) (7),

(7),.the

the

l ; .

Page of 4 Page 1 of

1 of 4

------------_ .....•..._------------------------...;;::~-

INDEX NO. 524910/2023 ..• FILED: KINGS COUNTY CLERK 10/07/2024 02:28 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/07/2024

court court must

must accep

acceptt the

the facts

facts as alleged

alleged in the compl

complaint,

aint as true, accord the true,· accord the plaintif plaintifff the

the

benefi benefitt of

of every

every possib le favora

possible ble inferen favorable ce, and determ inference, determine only wheth ine only whether the facts facts as

as

/ / er the

alleged alleged fit within any

fitwithin any cogniz able legal cognizable legal theory

theory (see Leonv

Leonv Martin

Martinez, NY2d83,

ez, 84 NY2d 88 [1994]

[1994];;

83, 88

Meyer Meyer vv North

North Shore -Long Is.

Shore-Long _Jewish Health Is..Jewish Health Sys., Inc., 137 AD 3d 880, 880-88 AD3d 880-8811 [2d

[2d Dept

Dept

2016]; 2016]; Cecal

Cecal vv Leade

Leader,r, 74 AD3d

AD3d 1180, 1181 [2d Dept

Dept 2010]). "The criteri 2010]). "The criterionon is is whether

wheth er

the the propo nent of

proponent of the

the pleadi ng has

pleading has a cause

cause of

of action, not wheth

action, not whetherer he

he has

has stated

stated

one" one" (Gugg enheimer v.

(Guggenheimer v. Ginzbu rg, 43 NY2d 268, 275, 401 NYS2d Ginzburg, NYS2d 182, 182, 372

372 NE2d

NE2d 17;

17;

Rove/l Rovelloo v.

v. Orofin

Orofinoo Realty

Realty Co., 40 NY2d at 636, 389 NYS2d 636,389 NYS2d 314, 357 NE2d NE2d 970).

970). "[B]ar

"[Blare e

legal legal conclu sions and

conclusions and factua

factual l claims which are claims which are flatly contradicted flatly contra by the dicted by the evidence

evidence

are are not

not presu med to

presumed to be

be true on such

true on such a motio

motion"n" (Palaz

(Palazzolo v. Herrick

zolo v. Herrick,, Feinste Feinstein, LLP,

in, LLP,

· 298

298 AD2d

AD2d 372,

372, 751

751 NYS2d

NYS2d 401).

401). If the docum

documentary proof dispro entary proof disproves

ves an

an essential

essential

allegat ion of allegation of the

the compla int, dismis

complaint, sal pursua dismissal nt to CPLR pursuant CPLR 3211 (a)(7)

(a)(7) is

is warran

warranted even if

if

ted even

the the allegat ions, standin allegations, standingg alone, alone, could

could withsta nd a motion withstand motion to dismis dismisss for failure to

for failure to state

state a

a

cause cause of

of action

action (see

(see McGui re v.

McGuire v. Sterlin

Sterlingg Double

Doubleday Enters.,., LP, 19 AD3d day Enters 660, 661, AD3d 660, 799

661, 799

NYS2d NYS2d 65).

In In the

the presen

presentt case,

case, affordi ng the compla affording int a liberal complaint liberal constr construction, accepting

uction, accept the

ing the

facts facts as

as alleged

alleged therein

therein as true, and grantin grantingg plaintif

plaintiffs benefitt of fs the benefi of every

every possib

possible

le

inference, itit is inference, is _the

the opinio

opinionn of

of this Court

Court that

that the compl

complaint sufficiently

aint sufficie states causes ntly states causes of

of

action. Although facts action. Although facts sufficie nt to justify sufficient justify oppos opposition may exist,

ition may exist, they

they curren

currently reside

tly reside

almost almost exclus ively within exclusively within the knowle dge of knowledge of the officer officerss or emplo

employees of defendant

yees of defendant (see

(see

CPLR CPLR 3211[d

3211[d]] ).

). See

See also

also lomma rini v.

lommarini v. Mortg. Elec. Regist Registration Sys., Inc., ration Sys., Inc., 54

54 Misc.

Misc. 3d

3d

1225(A 1225(A)) (N.Y. Sup. Ct. 2017).

2017).

When When a

a party,

party, usually

usually the defend ant, moves defendant, moves for a motion motion to dismis

dismiss,

s, itit is

is asking

asking

Page Page 20f4

2 of 4

2 of 4

FILED: KINGS COUNTY CLERK 10/07/2024 02:28 PM INDEX NO. 524910/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/07/2024

the court

court to make that determination make that determination instead.

instead. "Courts

"Courts are not infallible.

infallible. In undertaking undertaking

such a task, a court should be mindful court should mindful to prevent prevent errors

errors which

which could

could result

result in the dismissal

dismissal

of a worthy

worthy claim,

claim, even

even if it means

means risking

risking an unworthy

unworthy claim

claim proceeding

proceeding to trial. In other other

words, words, it must side of the plaintiff.

must err on the side Toward this plaintiff. Toward this aim, many many rules

rules and standards

standards

have evolved

evolved for

for the court

court to follow." Poolt v.

follow." Poolt v. Brooks, Brooks, 38 Misc. 3d 1216(A), 1216(A), 967 N.Y.S.2d

N.Y.S.2d

869 (Sup. Ct. 2013)

2013)

In the case

case at bar, Plaintiffs verified complaint Plaintiffs verified complaint constitutes constitutes evidence.

evidence. How

How credible

credible

that evidence that evidence is irrelevant irrelevant at this juncture.

juncture. Plaintiff

Plaintiff must

must still make

make out a prima

prima facie

facie case

case

against against them

them at trial through

through competent

competent evidence,

evidence, but when

when it comes

comes to "he said, she

said," merely

merely raises question of credibility raises a question credibility for the jury jury to decide

decide (see

(see Communications

Communications

& Entertainment

Entertainment Corp. v. Hibbard Brown v. Hibbard Brown & Co., Inc., supra, 202 A.D.2d A.D.2d 191, 608 NYS2d

NYS2'd

214). As such,

such, the

the plaintiffs

plaintiffs have

have plead facts sufficient plead facts for all causes sufficient to for of action causes of action and

defendant defendant has failed

failed to submit

submit any documentary

documentary evidence the contrary.

evidence to the such, it is contrary. As such,

inappropriate dismiss such inappropriate to dismiss such claims claims at this early juncture as this early juncture this is a pre-answer pre-answer motion

motion

to dismiss.

dismiss.

In addition,

addition, defendant's

defendant's personal jurisdiction arguments personal jurisdiction arguments are without without merit

merit as the

agreement agreement itself

itself contains

contains a jurisdiction

jurisdiction clause

clause stating

stating that

that the

the defendants

defendants agree

agree to

personal personal jurisdiction service of the complaint jurisdiction by service complaint by certified certified mail. Plaintiff Plaintiff has submitted

submitted

proof proof of the certified

certified mailing

mailing to the addresses

addresses contained

contained and agreed

agreed to in the

the contract.

contract.

The Appellate

Appellate Division,

Division, Second

Second Department

Department has held that service of that service of process

process by mail

mail as

terms of

per the terms of a written written agreement

agreement is sufficient

sufficient and reasonably reasonably calculated

calculated to apprise

apprise a

defendant of defendant of the

the pendency

pendency of

of a lawsuit.

lawsuit. See Matter

Matter of

of New

New York

York Merchants

Merchants Protective

Protective

Co., Inc., v.

v. Mirna's

Mima's Kitchen,

Kitchen, Inc., 114 AD3d

AD 3d 796

796 (2d Dep't

Dep't 2014);

2014); see

see also, Matter

Matter of

of

Page Page 3 of

of 4

3 of 4

FILED: KINGS COUNTY CLERK 10/07/2024 02:28 PM INDEX NO. 524910/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/07/2024

Fernandez Fernandez (Universal

(Universal Underwriters

Underwriters Ins.) Co., 130 AD 2d 657 657 (2d Dep't

Dep't 1987).

1987).

Accordingly, Accordingly, defendants'

defendants' motion

motion to dismiss

dismiss is hereby

hereby denied

denied for

for the

the reasons

reasons stated

stated

above. above. Defendants

Defendants have

have 30 days

days from

from the date

date of

of this

this order

order to file

file and answer.

answer. (MS#1

(MS#1).).

This This constitutes

constitutes the

the Decision/Order

Decision/Order of the court.

Dated: Brooklyn,

Brooklyn, New

New York

York

IiI/

October 7, 2024 October 2024

(liTER F~RJrWITH: ~fER F~R,r.WITH:

.

ftv) ffl HON.

Vi\

HON. RICHARD·.o/ELASQUEZ

RICHARD.\.CLASQUEZ

Hon. Richei'd velasq~,·JSC Hon. Richard vetesql ; JSC \

OCT D7 2024 DCT 072024 ~

Page Page 4 of 4

4 of 4