DECISION AND ORDER Plaintiff Georgine Shulman and defendant David Shulman were married on August 9, 2008 in Lake George, Warren County. The marital residence was located at 27 Windmill Circle in Stamford, Connecticut.1 The parties’ relationship subsequently deteriorated and they signed a Settlement Agreement on September 10, 2015, with a Judgment of Divorce entered that same date by the Superior Court of Connecticut, Judicial District of Stamford/Norwalk. In accordance with the Settlement Agreement, defendant executed a Promissory Note to plaintiff on September 10, 2015 wherein he promised to pay her the sum of $337,500.00 in monthly increments. The Note is “secured…by [a] certain Pledge Agreement,…of even date [t]herewith, by and between [plaintiff] and [defendant].” The Note includes a maturity date of August 15, 2021, at which time “[t]he entire principal balance is due and payable.” §12 of the Note further provides as follows: “Any action or proceeding to enforce or defend any rights under this Note or under any agreement, instrument or other document contemplated hereby or related hereto; directly or indirectly related to or connected to the Obligations (as such term is defined in the Pledge Agreement) or the administration or enforcement thereto; or arising from the debtor/creditor relationship of [the parties hereto] shall be brought only in the Superior Court of Connecticut or the United States District Court for the District of Connecticut. The parties hereto agree that any proceeding instituted in either of such courts shall be of proper venue, that such courts shall have personal jurisdiction over the parties and that any and all pleadings, summons, motions and other process in such proceeding shall be fully and effectively served when transmitted by United States Mail (registered or certified), postage and registry fees prepaid. Any judgment or decree obtained in any such action or proceeding may be filed or enforced in any other appropriate court or state of competent jurisdiction.” Plaintiff commenced this action on October 16, 2020, alleging that defendant “failed and refused to pay the Note when due in accordance with the terms thereof and is in default.” Defendant — who now resides at 42 Brook Street in Bolton Landing, New York, and owns and operates Beyond the Sea, a restaurant located at 4957 Lake Shore Drive in Bolton Landing — was personally served with the summons and complaint at his restaurant on October 21, 2020, and thereafter failed to answer. Presently before the Court is (1) plaintiff’s motion seeking a default judgment on the issue of liability and an inquest on damages; and (2) defendant’s cross motion for dismissal of the complaint or, alternatively, for an extension of time to answer. The motion and cross motion will be addressed ad seriatim. Plaintiff’s Motion “On any application for judgment by default, the applicant shall file…proof of the facts constituting the claim, the default and the amount due by affidavit made by the party” (CPLR 3215 [f]). An “affidavit and complaint verified by plaintiff['s] counsel, who lack[s] personal knowledge, [are] not sufficient to establish ‘proof of the facts constituting the claim’” (333 Cherry LLC v. Northern Resorts, Inc., 66 AD3d 1176, 1179 [2009], quoting CPLR 3215 [f]; see Velez v. Mr. Demolition, Inc., 172 AD3d 1140, 1141 [2019]; Antiohos v. Morrison, 159 AD3d 527, 527 [2018]). Here, plaintiff has submitted the affidavit of her counsel and a copy of the complaint, also verified by her counsel. Significantly, plaintiff’s counsel does not claim to have any personal knowledge of defendant’s alleged default. Indeed, neither his affidavit nor the verified complaint provide any information with respect to the date of the alleged default nor the amount allegedly due and owing — they simply allege in conclusory fashion that a default has occurred. Further, while a copy of the Note is attached to the complaint, a copy of the Pledge Agreement securing the Note has not been provided. To the extent that this Agreement is referenced throughout the Note and defines several of the terms used therein, its absence makes the facts constituting plaintiff’s claim even more elusive. Briefly, while plaintiff did submit an affidavit in opposition to the cross motion, this affidavit merely states that “as a part of equitable distribution [d]efendant executed a promissory note in [her] favor in the amount of $337,500[.00].” The remainder of the affidavit is then focused on the location of defendant’s residence. Like her counsel, plaintiff provides no details whatsoever relative to his alleged default under the note. Under the circumstances, the Court finds that plaintiff has failed to file “proof of the facts constituting the claim” (CPLR 3215 [f]; see 333 Cherry LLC v. Northern Resorts, Inc., 66 AD3d at 1179).2 Plaintiff’s motion for a default judgment is therefore denied in its entirety. Defendant’s Cross Motion Turning now to defendant’s cross motion, the Court will begin with that aspect of the cross motion which seeks to dismiss the complaint. Specifically, defendant seeks to dismiss the complaint under CPLR 3211 (a) (1) based upon the forum selection clause in the Note. As conceded by counsel for defendant during oral argument, this aspect of the cross motion constitutes a pre-answer motion to dismiss. To the extent that it was filed more than four months after defendant’s time to answer expired — and defendant did not seek permission to file it — it must be denied as untimely (see CPLR 3211 [e]; Gerster’s Triple E. Towing & Repair, Inc. v. Pishon Trucking, LLC, 196 AD3d 876, ___, 2021 NY Slip Op 04265, *2 [2021]; Bennett v. Hucke, 64 AD3d 529, 530 [2009]). Briefly, defendant contends that service upon him was improper and, as such, that his time to answer never began to run. Specifically, defendant contends that §12 of the Note requires service “by United States Mail (registered or certified), postage and registry fees prepaid,” and plaintiff instead served him personally. This contention is without merit, however, as a careful reading of §12 demonstrates that it pertains only to proceedings brought in the Superior Court of Connecticut or the United States District Court for the District of Connecticut. Indeed, after specifically identifying these as the “only” courts where a proceeding can be brought, the section then goes on to state “that any proceeding instituted in either of such courts shall be of proper venue,…and that any and all pleadings, summons, motions and other process in such proceeding shall be fully and effectively served when transmitted by United States Mail (registered or certified), postage and registry fees prepaid.” To the extent that this action was commenced in the Supreme Court of Warren County, the service method set forth in §12 of the Note is inapplicable. Were the merits of this aspect of the cross motion to be considered, defendant would likely prevail. “‘It is well established that forum selection clauses are valid absent a showing that enforcement would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching’” (Tatko Stone Prods., Inc. v. Davis-Giovinzazzo Constr. Co., Inc., 65 AD3d 778, 779 [2009], quoting VOR Assoc. v. Ontario Aircraft Sales & Leasing, 198 AD2d 638, 639 [1993] [citations omitted]; see Brooke Group v. JCH Syndicate 488, 87 NY2d 530, 534 [1996]; Harry Casper, Inc. v. Pines Assoc., L.P., 53 AD3d 764, 764-765 [2008]). Here, plaintiff resides in Connecticut — closer to the selected forum. That being said, she contends that enforcement of the forum selection clause is unreasonable and unjust because “the only assets [d]efendant owns or has any interest in are located within the State of New York and, in particular, Warren County.” As such, plaintiff contends that “she would end up in this very Court in any attempt to meaningfully enforce the terms of the Note.” That may be true, but this possibility was clearly anticipated by the parties when the Note was executed. §12 of the Note specifically provides that “[a]ny judgment or decree obtained in [Connecticut] may be filed or enforced in any other appropriate court or state of competent jurisdiction.” Under the circumstances, it does not appear that enforcement of the forum selection clause is either unreasonable or unjust. It must also be noted that there are no allegations that the clause is invalid because of fraud or overreaching. Turning now to the second aspect of defendant’s cross motion, “[a] court may grant an extension of time to serve an answer ‘upon such terms as may be just and upon a showing of reasonable excuse for delay or default’” (333 Cherry LLC v. Northern Resorts, Inc., 66 AD3d 1176, 1177 [2009], quoting CPLR 3012 [d]; accord Gerster’s Triple E. Towing & Repair, Inc. v. Pishon Trucking, LLC, 2021 NY Slip Op 04265 at *2). Here, defendant has submitted an affidavit stating as follows: “[P]laintiff purportedly served me with the summons and complaint at my restaurant in Bolton Landing…during business hours and while customers were there. Not long after this purported service I contacted my attorney to discuss my defense of this case. Because the Note clearly requires this lawsuit to be filed in Connecticut, I asked my attorney…to speak with plaintiff’s counsel about dismissing this case in an effort to avoid and/or limit the costs of having to defend a case that should never have been filed in this Court. I never wanted or intended to abandon my defense of this case.” Counsel for defendant then states: “[Defendant] contacted me after he was purportedly served with the summons and complaint in this action to discuss the case. So that [defendant] could avoid having to unnecessarily incur costs and fees in connection with this case, I contacted plaintiff’s counsel on various occasions in an effort to secure a voluntary discontinuance of this action because it clearly should never have been filed nor can it be maintained in this Court pursuant to [the] forum selection clause in the Note. Unfortunately, these efforts proved unsuccessful as plaintiff’s counsel refused to discontinue the action.” In opposition to this aspect of the cross motion, counsel for plaintiff submitted an affirmation indicating that he received a telephone call from counsel for defendant on December 2, 2020 — approximately one month after defendant’s time to answer expired. He and counsel for defendant then exchanged emails on December 14 and 18, 2020, respectively, following which he heard nothing further from counsel for defendant.3 Significantly, counsel for defendant does not dispute this timeline in his reply in further support of the cross motion. To the extent that defendant’s time to answer expired on November 10, 2020, and he made no effort whatsoever to serve an answer until the filing of this cross motion on March 29, 2021, the Court finds that he has failed to establish a reasonable excuse for the delay (see Gerster’s Triple E. Towing & Repair, Inc. v. Pishon Trucking, LLC, 2021 NY Slip Op 04265 at *2; 333 Cherry LLC v. Northern Resorts, Inc., 66 AD3d at 1177). His counsel was aware of the default since at least December 2, 2020 and took no steps to serve an answer — nor did he request an extension of time in which to do so. Defendant’s position that this action was improperly commenced in New York and that he was improperly served does not negate the need for an answer — especially where, as here, plaintiff disagrees with this position and refuses to discontinue. Based upon the foregoing, defendant’s cross motion is denied in its entirety. With the motion and cross motion both denied, the Court is left with a procedural quandary. As discussed above, defendant appears to be correct that this action should have been filed in Connecticut in accordance with the forum selection clause in §12 of the Note. Defendant does not, however, have a reasonable excuse for his delay in answering. As such, even if he moves for an extension of time in which to file a pre-answer motion to dismiss, it is unlikely he will succeed. Plaintiff may succeed in demonstrating her entitlement to a default judgment if her motion is renewed but given the several infirmities outlined above, that too is a stretch.4 With these observations in mind, counsel for the parties are hereby directed to appear for a conference on September 28, 2021 at 10:00 A.M. to discuss the best path forward. This conference will be conducted virtually using Microsoft Teams. Therefore, having considered NYSCEF documents 1 through 9, 13, 18 through 21, 23 through 30, and oral argument having been heard virtually on August 13, 2021 with John D. Wright, Esq. appearing on behalf of plaintiff and John A. Tartaglia, III, Esq. appearing on behalf of defendant, it is hereby ORDERED that plaintiff’s motion for a default judgment is denied in its entirety, without prejudice; and it is further ORDERED that defendant’s cross motion to dismiss the complaint or, alternatively, for an extension of time to answer is denied in its entirety, without prejudice; and it further ORDERED that counsel for the parties shall appear for a conference on September 28, 2021 at 10:00 A.M., with the conference to be conducted virtually using Microsoft Teams; and it is further ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied. The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendant in accordance with CPLR 5513. Dated: August 30, 2021
