Opinion
Index No. 650812/2022
12-22-2022
Sweetpea Ventures Inc., MJT Park Investors, Inc., Michael Toporek, Matthew Lipman, Plaintiff, v. Golenbock Eiseman Assor Bell & Peskoe LLP, OMAR BELMAMOUN, THAMI KHETTAM, Defendant.
Unpublished Opinion
Robert R. Reed, J.
ROBERT R. REED, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 26, 38 were read on this motion to EXTEND - TIME.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 70, 71, 72, 73, 74, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 123 were read on this motion for JUDGMENT - DEFAULT.
In this action for fraud, plaintiffs move pursuant to CPLR section 306-b for an order extending time to serve defendants Omar Belamamoun and Thami Khettam (motion seq. no. 002). Thereafter, plaintiffs moved pursuant to CPLR 3215, for entry of a default judgment against defendant Omar Belmamoun based upon his failure to timely respond to the summons and complaint (motion seq. no. 005). Belmamoun cross-moves for an extension of time to respond to the summons and complaint.
Motion sequences 002 and 005 are consolidated herein for disposition.
Plaintiffs filed the summons and complaint on February 18, 2012, alleging that defendants engaged in fraud. Plaintiffs assert defendants Belmamoun and Thami Khettam ("Khettam") made material misrepresentations that Golenbock Eiseman Assor Bell & Peskoe, LLP (the "Golenbock law firm") was authorized to represent Brookstone Partners Morocco, S.A. ("BPM") in a separate action before the Supreme Court for the State of New York, New York County, Brookstone Partners Morocco, S.A. v Finco Prime Consulting Corp, index number 656342/2018 (NYSCEF doc. no. 1).
Plaintiffs' Motion to Extend Time to Serve
In motion sequence 002, plaintiffs requested additional time to serve defendants Belmamoun and Khettam, both of whom are allegedly citizens of (and are domiciled in) the Kingdom of Morocco (NYCEF doc. no. 23, para 2).
CPLR 306-b provides that service of process must be made "within one hundred twenty days after the commencement of the action." CPLR 306-b permits the court to extend the time for service "upon good cause shown or in the interest of justice." "[W]hile 'good cause' requires a showing of reasonable diligence, 'the interest of justice' standard has a broader scope, which can encompass late service due to 'mistake, confusion or oversight, so long as there is no prejudice to the defendant" (Matter of Baumann & Sons Buses, Inc. v Ossininq Union Free Sch. Dist., 121 A.D.3d 1110, 1113 [1st Dept 2014], quoting Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105 [2001]; see also Nicodene v Byblos Restaurant, Inc., 98 A.D.3d 445 [1st Dept 2012]; Henneberry v Borstein, 91 A.D.3d 493 [1st Dept 2012]). Whether to grant "an extension of time for service [pursuant to CPLR 306-b] is a matter within the court's discretion" (Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d at 101).
Here, plaintiffs aver that they have a meritorious cause of action, that the length of delay is minimal, and the request for an extension to serve is prompt. Plaintiffs also refute the existence of any prejudice to defendants as the statutes of limitations for plaintiffs' claims have yet to expire (NYCEF doc. no. 23, paras 16-19).
In opposition, counsel for defendant Golenbock, Eiseman, Assor Bell & Peskoe LLP, alleges that the action lacks merit (NYCEF doc. no. 26). Such defendant opposes any application to extend service because it believes plaintiff unreasonably delayed in requesting additional time (two months after the 120-day deadline expired) and argues that plaintiffs have not demonstrated that any reasonable efforts have been undertaken to serve Belamoun and Khettam (id.).
CPLR 306-b permits this court to extend the time for service upon good cause shown or in the interest of justice. 'Good cause' requires a showing of reasonable diligence (Matter of Baumann & Sons Buses, Inc. v Ossininq Union Free Sch. Dist., 121 A.D.3d 1110, 1113 [1st Dept 2014].Here, plaintiffs failed to show any reasonably diligent efforts to serve the summons and complaint. Plaintiffs submitted no information regarding its efforts to locate and serve defendants. The moving papers do not detail what attempts were made to serve defendants during the 120-day period after the commencement of the action and thereafter, and it is unclear why more time to serve these defendants became necessary.
While the present motion lacks specific details about plaintiffs' efforts to serve those defendants, due diligence is just one factor to consider under the interest of justice standard.
"The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant"(Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105-106 [2001]).
Plaintiffs have demonstrated the potential merit of their claims. According to the complaint, plaintiffs own 50% of nonparty Brookstone Partners Morocco, S.A. (BPM), a Moroccan corporation (NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint ¶ 21). Belmamoun and his family own the remainder. Plaintiffs allege that Belmamoun had been appointed BPM's chairman and chief executive officer in 2014, but that Belmamoun's tenure expired on December 2, 2020 (id., ¶ 5). Khettam claims to be BPM's Assistant General Manager (id., ¶ 6). In 2021, Belmamoun allegedly retained Golenbock to represent BPM in a proceeding captioned Brookstone Partners Morocco, S.A. v FinCo Prime Consulting Corp., Sup Ct, NY County, index No. 656342/2018 (id., ¶¶ 15 and 37). Plaintiffs, though, claim that the Board of Directors could not have authorized BPM or Belmamoun to hire Golenbock because BPM has not had a valid Board of Directors under Moroccan law since April 8, 2019 (id., ¶¶ 32 and 35). Khettam allegedly confirmed Golenbock's hiring (id., ¶ 46), and Golenbock allegedly represented that it had been retained by BPM (id., ¶ 53).
Further, claims for fraud and for Judiciary Law § 487 violations are subject to a six-year statute of limitations which has not yet expired (see CPLR 213 [1] and [8]). Plaintiffs filed the present motion approximately five weeks after the 120-day statutory period within which they had to effectuate service had expired, and there is no demonstrable prejudice to Khettam as the action is in the early stages of litigation.
Accordingly, an additional 60 days will be granted to serve defendant Khettam with process (see Fernandez v McCarthy, 183 A.D.3d 539, 540 [1st Dept 2020], lv denied sub nom. McCarthy v City of New York, 36 N.Y.3d 901 [2020]).
However, in consideration of plaintiffs' motion for default as against defendant Belmamoun (motion sequence 005), plaintiffs' motion for additional time to serve defendant Belmamoun is denied as moot.
Plaintiffs' Motion for Default
In motion sequence 005, plaintiffs move for an order granting default judgment against defendant Belmamoun. Plaintiffs allege that they served the summons and complaint upon Belmamoun in Morocco on July 22, 2022, pursuant to CPLR 308 and 313.
On an application for a default judgment, pursuant to CPLR 3215, the plaintiff must submit "proof of service of the summons and the complaint[,]... proof of the facts constituting the claim, [and] the default" (CPLR 3215[f]). Upon default, "a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages" (HF Mgt. Servs. LLC v Dependable Care, LLC, 198 A.D.3d 457, 458 [1st Dept 2021] [internal quotation marks and citation omitted]; Petty v Law Off. of Robert P. Santoriella, P.C., 200 A.D.3d 621, 621 [1st Dept 2021] [while plaintiff must submit proof of prima facie viability of its claims, "the standard of proof is minimal"] [internal quotation marks and citation omitted]).
Here, plaintiffs have failed to establish that they properly served Belmamoun with the summons and complaint in the underlying action. Plaintiffs' counsel states in his affirmation that a copy of the affidavit of service as to the summons and complaint is attached to plaintiffs' motion as Exhibit B. However, plaintiffs' Exhibit B is not an affidavit of service as to the summons and complaint, nor do plaintiffs attach to their moving papers an affidavit of service to establish that the summons and complaint were properly served upon Belmamoun.
CPLR 2101(b) requires:
"(b) Language. Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate.
On November 10, 2022, plaintiffs electronically filed a copy of what plaintiffs purport to be an affidavit of service of the summons and complaint upon Belmamoun. The "affidavit" is written in Arabic and plaintiffs include two "Arabic - English Translation" documents, each referring to service upon "Mr. Thami Khettam" and Belmamoun respectively. Plaintiffs do not indicate which translation document refers to the "affidavit" nor does he indicate who prepared the translation. As such, the Court cannot determine which translation applies to the "affidavit". Further, plaintiffs do not include an affidavit by the translator as required by CPLR 2101(b), nor do they provide any information as to the provenances of the attached translations.
Even assuming arguendo that plaintiffs had properly identified the translation and complied with CPLR 2101(b), plaintiffs failed to include any substantive argument as to any treaties that may or may not exist between the United States and Morocco regarding service and the court's acceptance of the documents submitted in support of its application. As such, plaintiffs have failed to establish that they properly effected service upon Belmamoun for the purposes of granting plaintiffs' motion for a default judgment.
In response to plaintiffs' motion, Belmamoun cross-moves for an extension of time to respond to the complaint. Belmamoun, by counsel, submits that his failure to respond to the summons and complaint was not willful and that he reasonably undertook efforts to extend his time to respond to the complaint with plaintiffs' attorneys. Counsel argues that plaintiffs' proof of service as against Belmamoun is deficient and that plaintiff will not be prejudiced should Belmamoun be given additional time to respond.
Pursuant to CPLR 2004:
“Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.”
Pursuant to CPLR 3012 (d):
"(d) Extension of Time to Appear or Plead. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default."
There is a strong public policy favoring the resolution of actions on their merits, and a defendant's time to answer will be extended pursuant to CPLR 2004 and 3012(d) where it can show a reasonable excuse for their delay (See Federal Natl. v Williams, 187 A.D.3d 991, 991-992 [2d Dept 2020]). Here, given the insufficiency of the documents filed in support of plaintiffs' motion for default, and Belmamoun's purported willingness to respond to the complaint and assert meritorious defenses, this court finds that good cause exists to warrant an extension of time to respond to the complaint (CPLR 2004).
Accordingly, it is hereby
ORDERED that plaintiffs' motion for additional time to serve defendant Khettam (motion seq. no. 002) is granted. Plaintiffs have an additional 60 days from the date of this order to effect service upon defendant Khettam; and it is further
ORDERED that plaintiffs' motion for additional time to serve defendant Belmamoun (motion seq. no. 002) is denied as moot; and it is further
ORDERED that plaintiffs' motion for default judgment against defendant Belmamoun (motion seq. no. 005) is denied; and it is further
ORDERED that defendant Belmamoun's cross-motion for an extension of time to respond to the complaint is granted. Belmamoun shall serve an answer to the complaint or otherwise respond thereto within 20 days from the date of this order.