The following papers having been read on this motion: Notice of Motion 1 Opposition 2 Defendants move for an order to dismiss the within action, pursuant to CPLR §3211(a)(8) and CPLR §327(a); in the alternative, Defendants have requested an extension of time to file an answer, pursuant to CPLR §2004. Plaintiff has opposed the motion. Based upon the following, the motion to dismiss is hereby denied and the request to extend the time with which Defendants have to file an answer is hereby granted. CPLR §3211(a)(8) permits a defendant to move to dismiss a complaint on the grounds that the court does not have jurisdiction over the person of the defendant. CitiMortgage, Inc. v. Twersky, 153 AD3d 1230, 61 NYS3d 297 (2nd Dept., 2017). The burden of proving that personal jurisdiction was acquired over a defendant rests with the plaintiff. Deb v. Hayut, 171 AD3d 862, 97 NYS3d 662 (2nd Dept., 2019). Here, Plaintiff has sufficiently demonstrated for this Court not only their contacts with New York State, in which it as a foreign limited liability company authorized to do business here in New York and has registered with this State a nerve center in Rockland County, but also that service took place in accordance with the laws of the State of Texas. Furthermore, pursuant to the contract between the parties on page 5, subsection 4.5, the parties agreed that any court sitting within the State of New York would be an acceptable forum. Thus, this Court is satisfied that jurisdiction in the State of New York is proper, and the request to dismiss is hereby denied. What is more concerning for this Court is the absence in the aforementioned contractual clause laying venue specifically Nassau County. Indeed, neither Plaintiff, who listed an address in Kings County on the summons in this action and has an address for service on file with the Department of State, Division of Corporations, in Rockland County, nor Defendants, all residing in Texas, have any contacts with Nassau County to satisfy the requirements of CPLR §503. See generally Merchant Cash and Capital, LLC v. Laulainen, 55 Misc.3d 349, 48 NYS3d 899 (Sup. Co., Nassau County, 2017). As such, notwithstanding the foregoing, this Court will certainly entertain a future motion made hereafter to change venue. … Pursuant to CPLR §2004, 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. The Court, in exercising its discretion on a motion for an extension of time, may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit. Matter of Village of Haverstraw v. Ray, 137 AD3d 800, 26 NYS3d 353 (2nd Dept., 2016), citing Tewari v. Tsoutsouras, 75 NY2d 1, 550 NYS2d 572 (1989). In the instant case, service was completed on Defendants within mere days of a shutdown limiting judicial activity in the State of New York as a result of the COVID-19 pandemic. The instant motion was filed only two months after such service took place and almost immediately after motions were permitted to resume being filed electronically with the NYSCEF system. Plaintiff, in opposition, has not cited any prejudice to the extension of time either. Given all of these factors in favor of Defendants, the application to extend their time to file an answer to the complaint is hereby granted. Defendants shall file and serve a copy of the within order with notice of entry upon Plaintiff within thirty (30) days from the date of this order. Thereafter, Defendants shall have sixty (60) days from the date of this order to file an answer to the complaint; in addition, Defendants shall also have sixty (60) days from the date of this order to file a motion to change venue pursuant to CPLR §503 or any objection to the current venue shall be deemed waived. This hereby constitutes the decision and order of this Court. Dated: August 28, 2020
