LLC v. AKA JACOB BRACH STELLAR PRINTING INC XYZ CORP (2026)

The following papers were read on this motion by respondents Jack Brach and Stellar Printing seeking to dismiss petitioner's proceeding for lack of personal jurisdiction due to defective service of process (CPLR 3211 [a] [8]), based upon the documentary evidence (CPLR 3211 [a] [1]), and the failure to state a cause of action due to defective predicate notices (CPLR 3211 [a] [7]; RPAPL 711 [2]).

NYSCEF Document Nos.

Notice of Motion, Affidavit, Exhibits, Service 4-10

Affirmation in Opposition, Exhibits, Service 11-15

Affirmation in Reply, Service 16-21

Upon the foregoing papers, it is ordered that this motion is determined as follows:

Petitioner commenced this commercial non-payment proceeding against respondents in March 2026. Respondents now move by this pre-answer motion seeking to dismiss the petition on several grounds: lack of personal jurisdiction due to defective service of process (CPLR 3211 [a] [8]); based upon the documentary evidence (CPLR 3211 [a] [1]); and the failure to state a cause of action due to defective predicate notices (CPLR 3211 [a] [7]; RPAPL 711 [2]).

The Court turns to the first branch of the motion seeking to dismiss the petition for lack of personal jurisdiction due to defective service of process (CPLR 3211 [a] [8]).

"The ultimate burden of proving a basis for personal jurisdiction rests with the party asserting jurisdiction" (see Fanelli v Latman, 202 AD3d 758, 759 [2d Dept 2022]). "However, to defeat a motion pursuant to CPLR 3211 (a) (8), a plaintiff 'need only make a prima facie showing that personal jurisdiction exists' " (see Lesavoy v Brady, 2025 NY Slip Op 05511 [2d Dept 2025], quoting Aybar v US Tires and Wheels of Queens, LLC, 211 AD3d 40, 49 [2d Dept 2022]).

Generally, affidavits of service are prima facie evidence of proper service (see U.S. Bank, N.A. v. Arias, 85 AD3d 1014, 1015 [2d Dept 2011]; see also Scarano v. Scarano, 63 AD3d 716 [2d Dept 2009]). To rebut the prima facie showing, the defendants are required to submit a sworn denial of specific facts in the process server's affidavits (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD2d 719 [2d Dept 2014]; see also Fountain Terrace Owners, Inc. v Balic, 59 Misc 3d 136 [A] [App Term, 2d Dept, 11th & 13th Jud Dists 2018]). "The sworn denial of the receipt of service must be a 'detailed and specific contradiction' of the allegations in the process server's affidavit" (see Rodriquez v 60 Graham, LLC, 173 AD3d 1095, 1096 [2d Dept 2019], quoting Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344 [2d Dept 2003]). A bare and unsubstantiated denial of service is insufficient to rebut a prima facie proof of service (see Deutsche Bank Nat. Trust Co., 114 AD3d at 719).

Here, the petitioner's affidavits of service indicate that service of the 14-Day Commercial Rent Demand and accompanying documents was effectuated upon respondents pursuant to RPAPL 735 (1) via substitute service to "Oscar L., Authorized Agent" and "Peter Schwartz, a person of suitable age and discretion." Additionally, the affidavits of service indicate that service of the notice of petition and petition were effectuated upon respondents pursuant to RPAPL 735 (1) via substitute service to "Jessica M., Human Resources/Employee."

As such, the burden shifted to respondents who, via the affirmation of respondent Jack Brach, initially deny knowing "Oscar L.," "Peter Schwartz," and "Jessica M." and reject these individuals are authorized to accept service on respondents' behalf. However, in the respondents' reply papers, Jack Brach also attests that he knows "Oscar L." and "Jessica M.," but that "Oscar L.," or "Oscar Larson," is employed as respondents' bookkeeper and that "Jessica M.," or "Jessica Morales Velez," is respondents' human resources administrator. These self-contradictory attestations aside, the Court finds of no moment respondents' argument that these individuals are unauthorized to accept service as RPAPL 735 (1) does not require the Court to make such a distinction. In fact, by respondents acknowledging in their reply papers that "Oscar L." and "Jessica M." are their employees corroborates service was effectuated in accordance with the statutory requirements. Likewise, the Court finds respondents' bare and unsubstantiated denial of service regarding "Peter Schwartz" fails to rebut plaintiff's prima facie proof of service.

Accordingly, the branch of respondents' motion to dismiss based on CPLR 3211 (a) (8) is denied.

The Court now turns to the second branch of the motion seeking to dismiss the petition based upon documentary evidence (CPLR 3211 [a] [1]).

CPLR 3211 (a) (1) allows a respondent to seek dismissal of a petition based upon the documentary evidence. A motion pursuant to CPLR 3211 (a) (1) must be made by pre-answer motion or raised in the answer, otherwise it is waived (CPLR 3211 [e]). On a motion to dismiss, the pleading is to be afforded a liberal construction and petitioner's allegations are accepted as true and accorded the benefit of every possible favorable inference (see Bd. of Managers of 37, 39 Madison St. Condominium v 31 Madison Dev., LLC, 230 AD3d 1214 [2d Dept 2024], citing Granada Condominium III Assn. v Palomino, 78 AD3d 996 [2d Dept 2010]). A motion to dismiss pursuant to CPLR 3211 (a) (1) may be appropriately granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Gillings v New York Post, 166 AD3d 584, 586 [2d Dept 2018], citing Goshen v Mut. Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]; see Goshen, 989 NY2d at 326-327; Strong Real Estate, LLC v 55 Town Line, LLC, 192 AD3d 716, 717 [2d Dept 2021]). It is also well settled that an affidavit of fact provided by a party does not constitute documentary evidence for purposes of CPLR 3211 (a) (1) (see Leon v Singh, 247 AD3d 867, 870 [2d Dept 2026]).

In support of the motion, respondents submit, inter alia, a copy of the pleadings; a copy of the lease dated April 1, 2023; the affirmation of respondent Jack Brach, respondent-tenant; the affirmation of respondents' counsel; and copies of the affidavits of service.

Respondents argue, based on the documentary evidence pursuant to CPLR 3211 (a) (1), that enforcement of the lease's "Additional Rent" clauses, specifically regarding heating oil, are unconscionable (RPL § 235-c [2]). Indeed, as respondents recognize, unconscionability generally requires both a showing of procedural and substantive elements (see RTT Holdings, LLC v Nacht, 206 AD3d 836, 841 [2d Dept 2022]). However, under CPLR 3211 (a) (1), the Court is limited to making procedural determinations. Further, the Court cannot consider respondent Jack Brach's affirmation as evidence within the calculus of CPLR 3211 (a) (1) (see Silber Inv. Properties, Ltd. v BJG Islandia Realty, LLC, 236 AD3d 953, 954 [2d Dept 2025]). Therefore, in reviewing the lease and pleadings, it cannot be said that respondents' documentary evidence utterly refutes the petitioner's allegations and conclusively establishes a defense as a matter of law pursuant to CPLR 3211 (a) (1).

Accordingly, the branch of the motion to dismiss based upon the documentary evidence (CPLR 3211 [a] [1]) is denied.

The Court turns to the third and final branch of the motion seeking to dismiss based upon the failure to state a cause of action due to defective predicate notices (CPLR 3211 [a] [7]; RPAPL 711 [2]).

With respect to the branch of the motion to dismiss for failure to state a cause of action, "the pleading is afforded a liberal construction," the facts alleged in the petition must be accepted as true, and petitioner is to be entitled to receive the benefit of every favorable inference (Leon v Martinez, 84 NY2d 83, 87 [1994]; see Nassau Operating Co., LLC v DeSimone, 206 AD3d 920, 925 [2d Dept 2022]). A motion to dismiss for failure to state a cause of action must be dismissed if the allegations contained within the "four corners" of the pleading manifest a cause of action cognizable at law (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]; Khoury v Khoury, 78 AD3d 903, 904 [2d Dept 2010]). In determining such a motion, the court may freely consider additional facts contained in affidavits submitted by the petitioner to remedy any defects in the pleading (see Twinkle Play Corp. v Alimar Props., Ltd., 186 AD3d 1447, 1448 [2d Dept 2020]).

Respondents contend, inter alia, that the petition fails to state a legally sufficient cause of action; that the predicate rent demand and supporting ledger are facially unclear, overinclusive, and fail to set forth a definite, cure-capable amount; and that the demand is "confusing and lumps unverified 'Oil Bills' and 'Taxes' with base rent without proper breakdown or invoices."

Whether the petitioner can ultimately establish its allegations is not part of the calculus in determining the motion to dismiss (see EBC I, Inc. v Goldman Sachs Co., 5 NY3d 11, 19 [2005]; Matter of Scarsdale Comm. for Fair Assessments v Albanese, 202 AD3d 966, 969 [2d Dept 2022]), and it is not the role of the court to determine issues of fact. Where evidentiary material is submitted and considered, and the motion is not converted into one for summary judgment, the question becomes whether the petitioner has a cause of action, not whether petitioner has stated one, and dismissal should not be granted unless it can be shown that the material fact alleged is not a fact at all, and unless it can be said that no significant dispute exists regarding it (see Guqqenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Twitchell Technical Products, LLC v Mechoshade Systems, LLC, 227 AD3d 45, 51-52 [2d Dept 2024], quoting Bonavita v Government Empls. Ins. Co., 185 AD3d 892, 894 [2d Dept 2020]). Here, the Court finds that the petition herein sets forth the allegations and information sufficient for a summary proceeding for non-payment of rent, and respondents fail to establish that petitioner does not have a cause of action based upon the material facts alleged.

Accordingly, the branch of the motion seeking to dismiss the petition for failure to state a cause of action (CPLR 3211 [a] [7]) is denied.

Respondents' motion is denied in its entirety. Any other relief requested not addressed herein has been otherwise considered and is likewise denied.

Respondents are directed to serve an answer upon petitioner within thirty (30) days of the date of this Order and file proof of same with the Clerk of the Court.

This matter shall appear on the Part 52 calendar for a pretrial conference on September 1, 2026 at 10:00 AM, Courtroom 308.

This is the Decision and Order of the Court.

Date: July 17, 2026

Jamaica, New York

Hon. Peter F. Lane, JCC

Peter F. Lane, J.