XBase Digital Inc. v. Nash

2024 NY Slip Op 31073(U)

• Court: New York Supreme Court, New York County
• Decided: March 29, 2024
• Status: Unpublished

Opinion

XBase Digital Inc. v Nash 2024 NY Slip Op 31073(U) March 29, 2024 Supreme Court, New York County Docket Number: Index No. 158082/2022 Judge: Mary V. Rosado 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. INDEX NO. 158082/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 04/01/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ----------------------------X INDEX NO. 158082/2022 XBASE DIGITAL INCORPORATED, MOTION DATE 07/26/2023 Plaintiff, MOTION SEQ. NO. 003 - V -

PAUL NASH, BRITEBANC HOLDINGS LTD., KENNETH DECISION + ORDER ON EPPERS, EPPERS CONSULTING, MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 35, 36, 37, 38, 39, 40,41,42,43,44 were read on this motion to/for REARGUMENT/RECONSIDERATION

Upon the foregoing documents, there being no opposition and good cause having been

shown, PlaintiffXBase Digital Incorporated's ("Plaintiff') motion for leave to reargue this Court's

June 30, 2023 Decision and Order (NSYCEF Doc. 37) is granted. Upon reargument, Plaintiffs

motion for default judgment against Defendant Britebanc Holdings LTD ("Britebanc") is granted.

Further, upon reargument, Plaintiffs motion for a money judgment on default against Defendants

Paul Nash, Kenneth Eppers, Eppers Consulting and Britebanc Holdings LTD ("Defendants"),

jointly and severally, is granted.

I. Background and Procedural History

By Decision and Order dated June 30, 2023 (the "Prior Decision"), this Court granted

Plaintiffs motion for default judgment against all defendants except Britebanc (the "Defaulting

Defendants") (NYSCEF Doc. 37). Additionally, the June 30, 2024 Decision and Order directed an

inquest on damages against the Defaulting Defendants on Plaintiffs First Cause of Action alleging

breach of contract, and Second Cause of Action alleging fraud (Id.). In that decision, the Court

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denied default judgment against Britebanc on the ground that Plaintiff had failed to adequately

prove service upon Britebanc (NYSCEF Doc. 37 at 2).

On July 26, 2023, Plaintiff brought the instant motion, without opposition, for leave to

reargue the June 30, 2023 Decision and Order, and upon reargument, for an Order (1) granting

summary judgment against Britebanc in the sum of $500,000; and (2) vacating the requirement

that an inquest be held in this matter and granting summary judgment in favor of Plaintiff and

against all Defendants, jointly and severally, in the amount of $500,000, with interest, costs, and

disbursements (NYSCEF Doc. 35).

II. Discussion

a. Leave to Reargue is Granted

Pursuant to CPLR § 2221 (d)(2), leave to reargue shall be based upon matters of fact or law

allegedly overlooked or misapprehended by the court in determining the prior motion. Whether to

grant leave to renew or reargue is in the discretion of the Court (Bank of America, NA. v Filho,

203 AD3d 594 [1st Dept 2022]; Fulton Market Retail Fish Inc. v Todtman, Nachamie, Spizz &

Johns, P.C., 158 AD3d 502 [1st Dept 2018]). The Court finds that there are grounds to grant leave

to reargue, as set forth below.

In the case at bar, leave to reargue is appropriate because the Court overlooked the fact that

although Plaintiff failed to serve Britebanc in accordance with CPLR 306, personal jurisdiction

was established over Britebanc, pursuant to CPLR 320(b), through Britebanc's Notice of

Appearance and Demand dated November 4, 2022 (NYSCEF Doc. 38).

Additionally, in ordering an inquest on damages against the Defaulting Defendants, the

Court overlooked the fact that Plaintiffs claim is for a sum certain, rendering an inquest

unnecessary.

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b. Upon Reargument, Plaintiffs Motion for Default Judgment Against Britebank is Granted.

The First Department has held that "[a]n appearance by a defendant is equivalent to

personal service of the summons upon it, unless objection to jurisdiction is asserted either in a pre-

answer CPLR 3211 motion or in the answer" (Urena v NYNEX Inc. 223 AD2d 442,443 [1st Dept

1996)). Upon review, the Court finds that the June 30, 2023 Decision and Order (NSYCEF Doc.

37) erred in denying default judgment against Britebanc, as Britebanc's Notice of Appearance

dated November 4, 2022 (NYSCEF Doc. 38) was the equivalent of personal service upon it.

Accordingly, Plaintiffs motion for default judgment against Defendant Britebanc is granted.

c. Upon Reargument, Plaintiffs Motion for a Money Judgment Against Defendants is Granted

It is well established that, when awarding summary judgment on default, there is no need

for an inquest on damages when the amount in dispute is for a sum certain (Transit Graphics Ltd.

v Arco Distributing, Inc. 202 AD2d 241 [1st Dept 1994)). The Court of Appeals has held that the

term "sum certain" "contemplates a situation in which, once liability has been established, there

can be no dispute as to the amount due, as in actions on money judgments and negotiable

instruments" (Reynolds Secur., Inc. v Underwriters Bank & Trust Co. 44 NY2d 568, 572 [1978)).

In this case, upon review, the Court finds that Plaintiff seeks a monetary judgment for

$500,000, which was allegedly paid to Defendants for the purchase of Bitcoins which were never

received (NYSCEF Doc. 40). In accordance with the above outlined criteria, the $500,000 sum

sought by Plaintiff constitutes sum certain (NYSCEF Doc. 40). Accordingly, an inquest is not

needed, and Plaintiffs motion for a judgment on default in the sum of $500,000 is granted against

Defendants, jointly and severally.

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Accordingly, it is hereby,

ORDERED that Plaintiff XBase Digital Incorporated's motion for leave to reargue is

granted; and it is further

ORDERED that upon reargument, the Court's prior Decision and Order dated June 30,

2023 (NYSCEF Doc. 37) is superseded and amended by this Decision and Order only to the extent

as set forth below; and it is further

ORDERED that Plaintiff XBase Digital Incorporated's motion for default judgment

against Defendant Britebanc Holdings LTD is granted; and it is further

ORDERED that Plaintiff XBase Digital Incorporated's motion for a money judgment on

default against Defendants Paul Nash, Kenneth Eppers, Eppers Consulting and Britebanc Holdings

LTD, jointly and severally, is granted in the amount of $500,000.00, plus statutory interest from

September 21, 2022 (the commencement of this action) through entry of judgment, as calculated

by the Clerk of the Court, together with costs and disbursements as taxed by the Clerk of the Court

upon submission of an appropriate bill of costs; and it is further

ORDERED that within ten (10) days of entry, counsel for Plaintiff XBase Digital

Incorporated shall serve a copy of this Decision and Order, with notice of entry, on all parties to

this action; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

3/29/2024 DATE N. MARY V. ROSADO, J.S.C.

CHECK ONE: x CASE DISPOSED NON-FINAL DISPOSITION

x GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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