Libertas Funding, LLC v. Travelland RV

2024 NY Slip Op 30415(U)

• Court: New York Supreme Court, Kings County
• Decided: February 6, 2024
• Status: Unpublished

Opinion

Libertas Funding, LLC v Travelland RV 2024 NY Slip Op 30415(U) February 6, 2024 Supreme Court, Kings County Docket Number: Index No. 533254/2023 Judge: Leon Ruchelsman 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 02/06/2024 02:19 PM INDEX NO. 533254/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 02/06/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CIVIL TERM: COMMERCIAL PART 8 -----. -------------- . -------- ... ··------------x LIBERTAS FUNDING, LLC, Plaintiff, Decision and order

- against - Index.No. 533254/2023

TRAVELLAND RV, INC. AND KEVIN MICHAEL MUNSTERMANN, Defendants, February 6, 2024 --. - ·--· . ·----· .. · ,----· ·-: ·----------· --· :---:x PRESENT: HON. LEON RUC::HELSMAN ~otion Seq. #1 & #2

The p1aintif:f has moved seeking summary judgement pursuant

to GPLR §3212 arguing there are no questions of fact the

defendants ow& the mohef sought. The defendants have cross-moved

seeking to dismiss the complaint on the grounds of lack qf

jurisdiction. The motions have been opposed respectively.

Papers were submitted by the parties arid .after reviewing all the

arguments this court now makes the following determination.

On August 7, 2023, the plaintiff a merchant cash advance

fuhdihg provider entered into a contract with de.fendants who

reside in Washington state. Pur.suant to. th.e agreement the.

plaintiff purchased $198,000 of defendant's future receivable for

$150,000. The defendant Kevin Munstermann guaranteed the

agTeement. The plaintiff asserts the defendants stopped

rernitta,nce s in b.Qtober 2 0 2.3 and now owe $15 8 , 819 . 5 0 . The

plaintiff asserts. the de-fendants breached t:he agreemen:t by

changing t:h~ bank whe.re.in the functs were to be withdrawn without

notifying the plaintiff anci by failing to pay amounts when due.

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This .a-e.tion- was commen_c-e_d and now the pla,intiff seeks summary j.µdgernent arguing the.r;e .can be no: questions .of fact the

defendants owe the amount outstanding and judgement should be

granted in their favor·. The- -def,endant;:s _oppose· the. m9tion arg1,1ing

there has bE!en no jurisdiction Conferred- upon the def e:ndants- and

in any event: there are questions of fact which preclude a su!11IIlary

-determinatio n at this time.

Conclusions_ of Law

Where the material facts at i$sue in a case ~~e in disput~

summary judgment canno1: be .granted ( Zuckerman ·~1. City of New

·tork, 49 N.YS2d SS-.7, 427 NYS2d 595 [1980"] )". Generally, it ·is ;for

the jury, the trier of fact 'to determine the legal cause of any injury, however, where only one conclusi:on rri.ay be drawn from the

facts then the que·stiort of legal cause m-ay be decided by the

triai cou:rt as a matter o:f 1 9 w (Marino v; Jarriison, 189 AD3d 1021,

136NYS3d :324 [2d Dept., 2021). It_ i,s well settl~d that the parties to an agr.eemeht may

freely select any forum to ·r·.esolve·· -any disputes re.garding the

interpretatio n. or ·perf.ormance 0,f t_he <:igre'eme.nt {Br·oo.ke Group -v.

JCH Syndicate 488, 87 NY2d 530, 64.0 NYS.2d 479 [1996]). Further,

a forum s-electi.bn cla.use .is pTim? faq;i.·e valid '~1,1nless- it 1·s· .shown

by t:he c_hqllenging _pa_rty t.o he .unreasonable. , urij ust, in.

contrav.erid. oh o.f pubJic policy, invalid due to fr·aud or

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overreaching, or it is shown that a trial iri the selected forum would be so gravely difficult that the challenging party would,

for all practical purposes, be deprived of its day in court'1

(see, Stravalle v. Land Cargo Inc., 39 AD3d 735, 835 NYS2d 606

[2d Dept., 2007]), In this case the agreement states that "any

lawsuit, action or proceeding arising out of or in connection

with this Agreement shall be instituted exclusively in any court

sitting in New York State (the "Acceptable Forums"). Each party

signing this Agreement agrees that the Acceptable Forums are

convenient, and irrevocably submits to the jur.isdiction of the

Acceptable Forums and waives any and all objections to

inconvenience of the jurisdiction or venue. Should a proceeding

be initiated in any other forum, the p,arties waive any right to

oppose any motion or application made by either party to transfer

such proceeding to an Acceptable Forum'' ( ~ , Agreement of s.ale

of Future Receipts, . 146 [NYSCEF Doc. No. 2]). .

The defendants argue that notwithstanding the forum

selec:tion clause, pursuant to Business Corporation Law. §1314 (b)

ri.o such basis for jurisdiction exists. That statute states that

a nonresident may not maintain an action against a foreign

:corporation, The statute does enumerate five· exceptions, namely

( 1) the action is brought:.. to recover damages arising from the breach of a contract made or to be performed in New York; (2) the subject matter of the litigation is within t'lew York; (3) t:he

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·ca,use. -of action .a.rose within New York; (.4) t.h_e nqn.-domicili ary

woµlq b.e subj_ect to per.son.al jurisqiction under CPLR §302; and

(5) the de.fendarit is a foreign entity d"oing busine_ss or

a:uthorized to do b.usine--s:s in: New Yo.rk. '.!:'he defendants a_ssert

that none of the exceptions apply and that con:seque·ntly no

subj e·ct matter jurisdiction has been conferr.ed. _. T.he plaintiff

counters that Business .. Corporation Law -§1314 {b) ,cannot ]par the ~ct ion because the plaintiff is a _limited liability company and

not:. a- corpo-ration .. Tt is true· that Business: c.orporation -Law

§1314 (b) only apP,lies to co_rporatiqns an.ct not lirni.ted liability companies (see, ·Pinnacle Business Fundihg LLC v. Muharib, 2023" WL

6:94 0304. [Supreme .Court ""Kiri.gs County 2023] ) . Thus, ];3µsiQ.es._s

Corporation Law §l314(b) cannot be valid grounds upon which to -object to j"urisd-iction .

Indeed,.- the:re· are no gro.unds ·to object to jµri.sdict.;Lon .

Furthe.r, there are no other grounds presented opposing the motion

seeking, sum+nary judg,ement. ·Thus,. the motion. ·s_ee,kin9·· summary

jlidgerne.nt is granted a_n¢l the _cross-moti_on seeking to dismiss is

hereby denied. So ordered. ENTER:

DATED: :Fe_pruaiy 6r 2024 B:rooklyn. N. Y.. I-ton. ·.JS.C

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