Zomongo.TV U.S. Inc. v. Capital Advance Servs.

• Decision Date: 25 August 2022
• Docket Number: Index No. 512735/2021
• Citation: 2022 NY Slip Op 32928 (U)
• Parties: ZOMONGO.TV USA INC. D/B/A ZOMONGO.TV USA, JOCELYNE LISA HUGHES-GSTROWSKI and JEREMY GENE OSTROWSKI, Plaintiffs, v. CAPITAL ADVANCE SERVICES, LLC,Defendant,
• Court: New York Supreme Court

2022 NY Slip Op 32928(U)

ZOMONGO.TV USA INC. D/B/A ZOMONGO.TV USA, JOCELYNE LISA HUGHES-GSTROWSKI and JEREMY GENE OSTROWSKI, Plaintiffs,
v.
CAPITAL ADVANCE SERVICES, LLC,Defendant,

Index No. 512735/2021

Supreme Court, Kings County

August 25, 2022

Unpublished Opinion

PRESENT: HON. LEON RUCHELSMAN JUDGE.

DECISION ARID ORDER

LEON RUCHELSMAN JUDGE.

The defendants have moved pursuant to CPLR §3211 seeking to dismiss the complaint on various grounds. The plaintiffs cross-move seeking to amend the complaint. The motions have been opposed respectively by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.

According to the complaint, the defendant Zomongo a Corporation involved in the advertising industry entered into two merchant cash agreements with the defendant. The first agreement was dated February 12, 2018 whereby the defendant purchased $449,700 of plaintiff's future receivables for $300,000. The second agreement was dated April 11, 2018 whereby the defendant purchased $861,925 of plaintiff's future receivables for $575,000. The complaint alleges, the defendant failed to deliver the purchased amounts pursuant to the agreements and improperly withdrew daily amounts in excess of the amounts to which the parties agreed. The complaint alleges further improprieties

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concerning usury, unconscionability and the lack of. any reasonable basis for the daily amounts determined in the agreements. The proposed amended complaint asserts causes of action for breach of contract, declaratory judgment, violations of the Uniform Commercial Code, fraud and unjust enrichment. The defendant asserts that essentially the claims are time barred and therefore the complaint or the proposed amended complaint fails to state any cause of action. The plaintiffs oppose the dismissal and seek to amend the complaint as noted.

Conclusions of Law

The first issue that must be addressed is the residence of the plaintiffs. The original complaint filed on September 10, 2021 asserted that Zompngo as well as Jocelyne Lisa Hughes-Ostrowski and Jeremy Gene Ostrowski all resided in Alberta Canada (see., First Amended Complaint, ¶¶ 1-3.). However, the proposed amended complaint now asserts Zomongo is a Delaware corporation. Further, the bank statements for Zomongo for the relevant period during Way 2018 as well as the confession Of judgement entered on May 29, 2018 list the address of Zomongo as well as the individuals in Peoria, Arizona. Further, the notice to judgement debtor executed by the sheriff of New York City also lists Zomohgo's address in Arizona. Further, the, first agreement and the_: second agreement both list the plaintiff's "physical

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address" in Arizona and the ACH Authorization Form concerning the first agreement lists Jocelyne Lisa Hughes-Ostrowski's address in Arizona and the ACH Authorization Form concerning the second agreement lists Jeremy Gene Ostrowski's address in Arizona. Thus, all information related to: this case Indicate the plaintiffs reside in Arizona. There is other information submitted, none of which relates to this case, that indicates the plaintiffs reside in Canada. This includes a. 2016 Franchise Tax Report from Delaware, Ms. Hughes-Ostrowski'' s driver's license,^[1] an answer in a Florida lawsuit dated August 8, 2018 a Canadian bankruptcy record search and a W-9 Tax document dated December 29, 2016. The documents from 20.16 have little, value since the. agreements in this case were executed in 2018, Even the documents that do indicate a Canadian address are not related to this case at all. Thus, while the exact residence of the plaintiff's might require further discovery or, the plaintiff's: might permissibly maintain two residences, also the subject of discovery, at this juncture the court will consider the plaintiff's residents, of. Arizona -

Concerning the plaintiff's motion seeking to amend the complaint, it is well settled that pursuant to CPL.R §215(6). usury carries a one year statute of limitations. There really is no

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dispute the contracts were executed on February 12, 2018 and April 11, 2018 and the complaint was filed more than a year after those dates. The plaintiffs argue that in the context of a motion to vacate a default any statute of limitations argument does not apply. In HRO Boston LLC v. CapCall LLC, 2020 N.Y. Misc. LEXIS 4064 [Supreme Court Westchester County 2020] the court dismissed a cause of action for usury where the lawsuit was filed more than one year after the contract was executed. The court specifically rejected the argument raised here that preventing the enforcement of the judgement...