NRO LLC NRO EDGARTOWN LLC JASON INDELICATO ALICE INDELICATO v. LLC DAVID GLASS YITZHAK STERN THE JOHN AND JANE DOE INVESTORS

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Supreme Court, Rockland County, New York.

NRO Boston LLC, NRO EDGARTOWN LLC, JASON INDELICATO and ALICE INDELICATO, individually and on behalf of all those similarly situated, Plaintiffs, v. Yellowstone Capital LLC, DAVID GLASS, YITZHAK STERN, and THE JOHN AND JANE DOE INVESTORS, Defendants.

037005/2019

Decided: April 09, 2021

White & Williams LLP on behalf of Plaintiffs Proskauer Rose LLP on behalf of Defendant Yellowstone Capital LLC Wells & Mendelberg PLLC on behalf of Defendant David Glass Stein Adler Dabah & Zeikowitz LLP on behalf of Defendant Yitzhak Stern

DECISION AND ORDER

Index No.: 037005/2019

Motion Sequences No. 4, 6, 7, and 8

The following papers, numbered 1 to 31, were read on Defendants' respective motions for summary judgment pursuant to CPLR § 3211 and Plaintiffs' motion seeking leave to file its first amended complaint pursuant to CPLR § 3025(b):

Motion Sequence #4 — Defendant Glass's Motion for Summary Judgment

Notice of Motion/Affidavit in Support/Memorandum of Law in Support/Affirmation in Support/Exhibits(A-E)1-4

Memorandum of Law in Opposition/Affirmation in Opposition/Exhibits(1-5)5-6

Affirmation in Reply7

Motion Sequence #6 — Defendant Stern's Motion for Summary Judgment

Notice of Motion/Memorandum of Law in Support/Affirmation in Support/

Exhibits(A-D)8-10

Memorandum of Law in Opposition/Affirmation in Opposition/Exhibits(A-H)/Supplemental Affirmation/Exhibits(A-D)11-13

Affirmation(Mendelberg)/Memorandum of Law in Reply14-15

Motion Sequence #7 — Defendant Yellowstone's Motion for Summary Judgment

Notice of Motion/ Memorandum of Law in Support/Affirmation in Support(Morris)/

Exhibits(1-7)/Affidavit in Support(Maczuga)/Exhibits(1-15)16-19

Memorandum of Law in Opposition/Affirmation in Opposition/Exhibits(A-H)/Supplemental Affirmation/Exhibits(A-D)20-22

Affirmation in Support(Mendelberg)/Memorandum of Law in Reply23-24

Motion Sequence #8 — Plaintiffs' Motion for Leave to File an Amended Complaint

Notice of Motion/ Memorandum of Law in Support/Exhibits(A/A1-A5)25-26

Affirmation in Opposition(Mendelberg)/Exhibits(A-C)27

Memorandum of Law in Opposition/Affirmation in Opposition(Murray)

/Exhibits(A-D)28-29

Memorandum of Law in Opposition(Picon)30

Affirmation in Reply31

Upon the foregoing papers, it is ORDERED that these motions are disposed of as follows:

This action arises out of nine merchant cash advance agreements ("MCA Agreements") between Plaintiffs NRO Boston LLC and NRO Edgartown LLC (collectively "NRO entities") and Defendant Yellowstone Capital, LLC ("Yellowstone"). The MCA Agreements contemplate that the NRO entities sell their future business receivables at a specific purchase amount to Yellowstone in return for an upfront sum. The MCA Agreements contemplated that 10-15% of NRO's daily revenue was to be withdrawn and deposited into a bank account until Yellowstone received the agreed upon purchase amount. From February 2016 to July 2016, NRO Boston entered into five of these MCA Agreements with Yellowstone, while NRO Edgartown entered into four of the same. Jason Indelicato and Alice Indelicato, the owners of the NRO entities, personally guaranteed the MCA Agreements. When the NRO entities defaulted on the payments to Yellowstone, Yellowstone filed affidavits of confessions of judgments in this Court against both NRO entities and the Indelicatos. Thereafter, the Rockland County Clerk entered two judgments by confession, which amounted to a combined total of over $1.6 million ("Judgments by Confession").

On December 13, 2019, the NRO entities and the Indelicatos (collectively, "Plaintiffs") filed this Complaint against Yellowstone, Yellowstone's co-founder David Glass and CEO Yitzhak Stern, and various Jane and John Doe Investors. In their Complaint, Plaintiffs allege violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") and the Massachusetts Consumer Protection Statute. Additionally, the Complaint seeks to vacate the Judgments by Confession, pursuant to CPLR § 5015.

By Decision and Order dated September 29, 2020, this Court granted in part and denied in part all the named Defendants' respective motions to dismiss Plaintiffs' Complaint. The Court dismissed the two RICO causes of action against all Defendants due to Plaintiffs' failure to adequately plead a RICO person distinct from a RICO enterprise. Meanwhile, the claims against all Defendants for violation of Massachusetts Consumer Protection Statute remained, as well as the claim sounding in vacatur of the Judgments by Confession pursuant to CPLR § 5015(a)(3) as against Defendant Yellowstone. Now, before the Court are Defendants' respective motions for summary judgment and Plaintiffs' motion seeking leave to file their First Amended Complaint. The Court addresses all four motions herein because the relief sought among the parties' applications are intertwined. First, the Court addresses Plaintiffs' motion because the determination thereof impacts the arguments raised in Defendants' motions.

I. Plaintiffs' Motion for Leave to File an Amended Complaint Pursuant to CPLR § 3025(b)

In their motion, Plaintiffs seek leave to file their First Amended Complaint, which seeks to assert violations of RICO and vacatur of the Judgments by Confession pursuant to CPLR 5015(a)(3). The substantive changes in the Proposed Amended Complaint from the original Complaint pertain to the distinctness requirement between the RICO person and RICO enterprise. All named Defendants oppose Plaintiffs' motion for the following reasons: (1) Plaintiffs' RICO causes of action fail to meet the distinctness requirement; (2) Plaintiffs' RICO causes of action fail to adequately plead injury so as to confer standing upon Plaintiffs; (3) Plaintiffs' Proposed Amended Complaint prejudices and surprises the parties; (4) Plaintiffs' class allegations must fail as they failed to timely move for class action certification pursuant to CPLR § 902; (5) the Indelicato Plaintiffs do not have standing to assert violations of RICO as shareholders; and (6) Plaintiffs' failure to include a redlined version of their Proposed Amended Complaint is fatal to their motion. Now, the Court addresses whether Plaintiffs' Proposed Amended Complaint prejudices or surprises the Defendants.

A. Whether Plaintiffs' Proposed Amended Complaint Prejudices or Surprise the Defendants

"Leave to amend a pleading should be freely given (see CPLR 3025[b]), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit." Douglas Elliman, LLC v Bergere, 98 AD3d 642 [2d Dept 2012][internal citations and quotations omitted]. It is within the Court's "broad discretion" whether to grant leave to amend. Tarek Youssef Hassan Saleh v 5th Ave. Kings Fruit & Vegetables Corp., 92 AD3d 749, 750 [2d Dept 2012]. "The defendants cannot legitimately claim surprise or prejudice, where the proposed amendments were premised upon the same facts, transactions or occurrences alleged in the original complaint." Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27-28 [2d Dept 2008][internal citations omitted].

Here, Defendants failed to meet their burden that there is prejudice or surprise to warrant denial of Plaintiffs' motion for leave to amend their Complaint. Indeed, Plaintiffs' causes of action in their Proposed Amended Complaint are based upon the same set of facts and transactions alleged in the original Complaint. Also, the parties are still in the early stages of discovery and no note of issue has been filed. The Court notes that although Plaintiffs did not file this motion until approximately three months after this Court dismissed Plaintiffs' RICO causes of action, this delay alone does not rise a level of prejudice to warrant denial of Plaintiffs' motion. Next, the Court determines whether the Proposed Amended Complaint is palpably insufficient or patently devoid of merit.

B. Whether Plaintiffs' Complaint Is Palpably Insufficient or Devoid of Merit

"To establish a RICO claim, a plaintiff must show: (1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962." DeFalco v Bernas, 244 F3d 286, 305 [2d Cir 2001][internal citations omitted]. "To establish a violation of § 1962(c), in turn, a plaintiff must show that a person engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Cruz v Fxdirectdealer, LLC, 720 F3d 115, 120 [2d Cir 2013][internal citations omitted]. The U.S. Court of Appeals for the Second Circuit has stated:

"We have made clear that, by virtue of the distinctness requirement, a corporate entity may not be both the RICO person and the RICO enterprise under section 1962(c). Id. This does not foreclose the possibility of a corporate entity being held liable as a defendant under section 1962(c) where it associates with others to form an enterprise that is sufficiently distinct from itself. In this regard we have noted that a section 1962(c) claim may be sustained where there is only a partial overlap between the RICO person and the RICO enterprise, Jacobson v. Cooper, 882 F.2d 717, 720 (2d Cir. 1989), and that a defendant may be a 'RICO "person" and one of a number of members of the RICO "enterprise," ' Cullen v. Margiotta, 811 F.2d 698, 730 (2d Cir.), cert. denied, 483 U.S. 1021 (1987)."

Riverwoods Chappaqua Corp. v Marine Midland Bank, N.A., 30 F3d 339, 344 [2d Cir 1994]; see also U1IT4Less, Inc. v FedEx Corp., 871 F3d 199 [2d Cir 2017]. In Riverwoods, the Second Circuit found that a corporate entity cannot be both a RICO person and RICO enterprise where a corporation associates with itself and its employees to form an enterprise. Meanwhile, the U.S. Supreme Court has distinguished the factual allegations in Riverwoods from cases where a natural person is alleged to be a RICO person:

"This case concerns a claim that a corporate employee is the 'person' and the corporation is the 'enterprise.' It is natural to speak of a corporate employee as a 'person employed by' the corporation. § 1962(c). The earlier Second Circuit precedent concerned a claim that a corporation was the 'person' and the corporation, together with all its employees and agents, were the 'enterprise.' See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N. A., 30 F.3d 339, 344 (1994) (affirming dismissal of complaint) . . . And the Second Circuit's other precedent also involved significantly different allegations compared with the instant case . . . We do not here consider the merits of these cases, and note only their distinction from the instant case."

Cedric Kushner Promotions, Ltd. v King, 533 US 158 [2001]. There, the U.S. Supreme Court found that a complaint meets the distinctness requirement when it alleges a natural person as the RICO person and the corporation as a RICO enterprise. Id. "A corporate employee who conducts the corporation's affairs through an unlawful RICO pattern of activity uses that corporation as a vehicle whether he is, or is not, its sole owner." Id. at 164-65 [internal citations and quotation marks omitted]. As the U.S. District Court for the Southern District of New York has interpreted it:

"Cedric Kushner asks courts to consider the nature of the 'person' who is accused of violating RICO. If a 'natural person' is accused of violating the statute, that 'person' is distinct from any corporate 'enterprise' because: (i) as a natural person, his legal rights and responsibilities are different from those of the corporation; and (ii) from a grammatical perspective, it makes sense to say that a natural person associates with or is employed by a corporation. For precisely the same reasons, a natural person is distinct from an enterprise consisting of a corporation and its employees. By contrast, a corporate person may not be distinct from an enterprise consisting of the corporation and its employees because: (i) the corporation may have the same legal rights and responsibilities as such an enterprise; and (ii) as explained above, it makes little grammatical sense to say that a corporation associates with itself and its agents."

Elsevier, Inc. v Grossman, 199 F Supp 3d 768 [SD NY 2016].

In its Decision and Order dated September 29, 2020, this Court followed Riverwoods by dismissing Plaintiffs' RICO causes of action in their original Complaint because they failed to allege that the RICO person Defendant Yellowstone was distinct from the RICO enterprise. Now, the Proposed Amended Complaint alleges that natural persons, Defendants Glass, Stern, and the Jane and John Doe Investors, are the RICO persons who operated the Defendant Yellowstone corporation as the RICO enterprise. The Proposed Amended Complaint no longer alleges that Defendant Yellowstone is a RICO person. As such, these amended RICO causes of action are more similar to those in Cedric Kushner, wherein the plaintiffs satisfied the distinctness requirement by alleging that the corporate employee operated the corporation as a RICO enterprise. Additionally, the Proposed Amended Complaint alleges that the RICO persons, through Defendant Yellowstone, provide funds to small businesses in need with instruments disguised as asset purchase agreements that are actually loans charged at usurious rates. According to Plaintiffs, this constitutes the unlawful RICO pattern of activity. Based upon the foregoing, Plaintiffs' amended RICO causes of action meet the distinctness pleading requirement.

Furthermore, the Court is not persuaded by Defendants' argument that Plaintiffs have failed to allege a clear and definite injury and, therefore, lack standing on their RICO claims. Contrary to Defendants' assertion, Plaintiffs' alleged liability on the Judgments by Confession resulting from the pattern of racketeering activity is a clear and definite injury to their businesses. See Chevron Corp. v Donziger, 833 F3d 74, 140 [2d Cir 2016][finding that "(plaintiff's) injury is in part its liability on an $8.646 billion judgment obtained through a pattern of racketeering activity; that injury, affecting its net worth, is clear and definite"]. Additionally, Defendants allege that the RICO claims are asserted on behalf of the Indelicatos, who, as shareholders and guarantors, do not have standing to pursue such causes of action. The Amended Complaint clearly states that the NRO entities, not only the Indelicatos, seek damages against Defendants for RICO violations. Therefore, the alleged lack of standing of the Indelicatos is not fatal to Plaintiffs' motion pursuant to CPLR 3025(b). See Sheldon Electric Co. v Oriental Boulevard Corp., 56 AD2d 886, 887 [2d Dept 1977]["The policy of our courts is to liberally permit amendments of pleadings unless the rights of a party are substantially prejudiced"].

Based upon the foregoing, the Court finds that Plaintiffs' Proposed Amended Complaint is neither palpably insufficient nor patently devoid of merit. Next, the Court addresses Defendants' other arguments in opposing Plaintiffs' motion.

C. Whether Defendants' Remaining Arguments Warrant Denial of Plaintiffs' Motion

Defendants further argue that Plaintiffs' motion should be denied because (1) they fail to attach a redlined copy of the Proposed Amended Complaint; (2) Plaintiffs' motion is an improper attempt to reargue Defendants' previous motions to dismiss; and (3) Plaintiffs failed to timely move to certify its class claims. The Court finds that none of these arguments are consequential to Plaintiffs' motion for the following reasons.

First, although Plaintiffs did not include a redline version of the Proposed Amended Complaint, this is not fatal to their motion. Indeed, Plaintiffs' submissions in support of their motion explain the substantive differences between their original Complaint and the Proposed Amended Complaint, namely, the issue of distinctness of the RICO claims. Berkeley Research Group, LLC v FTI Consulting, Inc., 157 AD3d 486 [1st Dept 2018][finding that the plaintiff's technical defect of failing to provide a redlined proposed amended complaint should have been overlooked]. Further, it is apparent to the Court that the remainder of the Proposed Amended Complaint continued to include their claim for vacatur of the Judgments by Confession pursuant to CPLR § 3025(b) and removes the cause of action under the Mass Gen Law ch. 93A.

Second, Plaintiffs' motion is not an improper motion for leave to reargue as Plaintiffs seek to amend their RICO claims. Although it previously dismissed Plaintiffs' RICO claims within their original Complaint, the Court nonetheless has broad discretion on whether to grant leave to amend. Notably, courts in the Second Circuit of the U.S. Court of Appeals have permitted plaintiffs to amend their complaint, pursuant to Fed. Rule 15(a), the corollary to CPLR § 3025(b), when their RICO causes of action fail to satisfy the distinctness requirement. See CPLR § 3025 Advisory Committee Notes, Subd (b) ["The wording of this subdivision is based upon Federal rule 15(a)"]; Ames Assocs. v ABS Partners Real Estate LLC, 2008 US Dist. LEXIS 818, *3-4, 2008 WL 68730 [SD NY January 4, 2008]["Because it appears that plaintiff may be able to adequately plead a distinct RICO enterprise if given an opportunity, the court grants plaintiff leave to amend the complaint"]; City of New York v Cyco.net, Inc., 383 F Supp 2d 526, 561 [SD NY 2005].

Third, the Court finds that the issue of whether Plaintiffs failed to timely move for class certification pursuant to CPLR § 902 has no bearing upon its determination of their application. The standard in determining Plaintiffs' CPLR § 3025(b) motion is whether the amendments are palpably insufficient, result in prejudice or surprise to the Defendants, or are patently devoid of merit. The class allegations in the Proposed Amended Complaint do not prejudice or surprise Defendants as Plaintiffs' original Complaint included class allegations for all the causes of action. Any arguments pertaining to class certification or the timeliness thereof is improperly before the Court at this juncture.

Based upon the foregoing determinations, the Court grants Plaintiffs' motion for leave to file an Amended Complaint. Next, the Court reviews Defendants' respective motions for summary judgment.

II. Whether to Grant Defendant Glass's and Defendant Stern's Motions for Summary Judgment

Upon this Court's Decision and Order dated September 29, 2020, the only remaining causes of action against Defendants Glass and Stern were for violations of Massachusetts General Laws, Chapter 93A, Sections 2 and 11, also known as the Massachusetts Consumer Protection Statute. Their respective motions seek summary judgment dismissing that cause of action as against them. However, because the Court is granting Plaintiffs leave to file their Amended Complaint, which does not include the Mass Gen Laws ch. 93A cause of action, Defendants Glass's and Stern's motions are now moot. Next, the Court reviews Defendant Yellowstone's motion for summary judgment.

III. Whether to Grant Defendant Yellow Stone's and Defendant Stern's Motions for Summary Judgment

In its motion, Defendant Yellowstone seeks summary judgment dismissing Plaintiffs' claims against it for vacatur of the Judgments by Confession and the violation of the Massachusetts Consumer Protection Statute. In light of the determinations above, the arguments pertaining to the Mass Gen Laws ch. 93A cause of action are now moot. The Court need only review Defendant Yellowstone's motion for summary judgment dismissing Plaintiffs' cause of action to vacate the Judgments by Confession as that Plaintiffs continue to seek the same in their Amended Complaint.

Defendant Yellowstone alleges that the portion of Plaintiffs' complaint seeking vacatur of the Judgments by Confession pursuant to CPLR § 5015(a)(3) is untimely because the one-year period to bring causes of action sounding in usury applies here. It relies on a decision from the Supreme Court, Westchester County, wherein the court found that because the underlying theory to vacate the Judgments by Confession was that the loans are usurious, the plaintiffs were effectively seeking to set aside agreements as void because of usury; as such, the court applied the one-year statute of limitations under CPLR § 215(6). NRO Boston LLC v CapCall LLC, 2020 NY Misc LEXIS 4064 [Sup Ct, Westchester County July 8, 2020]. Defendant Yellowstone asks the Court to follow CapCall because Plaintiffs' theory to vacate the Judgments by Confession herein is identical to the theory in Capcall. In opposition, Plaintiffs allege that the Court should apply the six-year period of statute of limitations period pursuant to CPLR § 213(1), as held by Supreme Court, Eerie County. McNider Mar., LLC v Yellowstone Capital, LLC, 2019 NY Slip Op 33418(U) [Sup Ct, Eerie County November 19, 2019]. There, the Court found that vacatur of judgments pursuant to CPLR § 5015(a)(3) has no limitation specifically prescribed by law when done through a plenary action and is, therefore, subject to the statute of limitations under CPLR § 213(1).

"As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986][internal citations omitted]. "Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a material and triable issue of fact." Anyanwu v Johnson, 276 AD2d 572 [2d Dept 2000]. Issue finding, not issue determination, is the key to summary judgment. Krupp v Aetna Casualty Co., 103 AD2d 252 [2d Dept 1984]. In deciding such a motion, the Court must view the evidence in the light most favorable to the non-moving party. See Kutkiewicz v Horton, 83 AD3d 904 [2d Dept 2011].

Pursuant to CPLR § 5015(a)(3), the court may relieve an aggrieved party from a judgment based on the ground of fraud, misrepresentation, or other misconduct of an adverse party. "Generally, a person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action for that relief." Regency Club at Wallkill, LLC v Bienish, 95 AD3d 879 [2d Dept 2012]. "Additionally, a party seeking relief from a judgment pursuant to CPLR 5015 (a) (3) is required to make the motion within a reasonable time." Sieger v Sieger, 51 AD3d 1004 [2d Dept 2008][internal citations omitted]."The determination as to whether such a motion has been made within a reasonable time is within the motion court's discretion." Nash v Port Auth. of NY & N.J., 22 NY3d 220 [2013].

Here, the Court finds that the operative time in which to bring an action seeking vacatur of a judgment under CPLR § 5015(a)(3) is within a reasonable time. Although Defendant Yellowstone and Plaintiffs allege that specific statutes of limitations apply, the Court disagrees. Courts have consistently held that a motion to vacate a judgment pursuant to CPLR § 5015(a)(3) must be made within a reasonable time. See Dimery v Ulster Sav. Bank, 82 AD3d 1034 [2d Dept 2011]; Country Wide Home Loans, Inc. v Harris, 136 AD3d 570 [1st Dept 2016]; HSBC Bank USA, N.A. v Ashley, 104 AD3d 975 [3d Dept 2013]; Miller v Lanzisera, 273 AD2d 866 [4th Dept 2000]. The parties' contentions assume that because Plaintiffs filed a plenary action instead of a motion pursuant to CPLR § 5015(a)(3), the reasonable time standard does not apply here. This is, however, unavailing. The policy behind requiring a plenary action to vacate judgments by confession is that "sharply contested issues of fact should not be resolved upon affidavits, but rather by trial in a plenary action[,]" which, in this Court's view, does not support a compelling reason to deviate from the reasonable time standard here. See Scheckter v Ryan, 161 AD2d 344 [1st Dept 1990]. Notably, the Appellate Division, First Department rejected the argument "that the statute of limitations for a de novo fraud action (see CPLR 213[8]) should be imported into CPLR 5015(a)(3)." Mark v Lenfest, 80 AD3d 426 [1st Dept 2011]. Consequently, the Court does not agree with Defendant Yellowstone's argument that the time to file an action to vacate a judgment pursuant CPLR § 5015(a)(3) should be based upon the underlying theory for such vacatur. Nor does the Court agree with Plaintiffs that no time limitation is prescribed by law thereby requiring the application of the six-year period under CPLR § 213(1). Next, the Court addresses whether Plaintiffs brought this action within a reasonable time.

The Court entered the Judgments by Confession on or around September 22, 2016. On October 12, 2017, Plaintiffs brought an action seeking to prevent Defendants from enforcing the Judgments by Confession in Massachusetts Superior Court, which was removed to the U.S. District Court for the District of Massachusetts. On December 7, 2018, the District Court dismissed all of Plaintiffs' causes of action relating to the formation of the Agreements and the entering of the Judgments by Confession, while permitting the causes of actions relating to "post-judgment" enforcement to proceed. On December 13, 2019, Plaintiffs commenced this action.

Although Plaintiffs do not provide when they became aware that the Agreements were void usurious loans, the very latest they found out about such is around October 2017, when they filed their complaint in Massachusetts. Plaintiffs waited until December 13, 2019, about one year following the dismissal of their claims in Massachusetts District Court and over three years after the Judgments were entered in this Court, to file this action. Plaintiffs allege that they did not unreasonably delay seeking vacatur because their filings in Massachusetts clearly demonstrate that they were not sleeping on their rights and that Defendant Yellowstone was aware of their intent to continue to pursue the dismissed claims in New York. Nonetheless, the Court finds that Plaintiffs did not move within a reasonable time, pursuant to CPLR 5015(a)(3), because more than three years elapsed since the Judgments by Confession were entered, during which period of time Plaintiffs engaged in other litigation practice relating to the Judgments "despite their awareness of all the relevant facts necessary to support their theory that the loan was usurious." Long Is. Capital Mgt. Corp. v Silver Sands Motel, Inc., 167 AD3d 857, 859 [2d Dept 2018][finding that the defendants did not move within a reasonable time under CPLR § 5015(a)(3) while they engaged in other motion practice relating to the action and had relevant facts necessary to support their theory for vacatur of the judgment]; see SNC Props., LLC v DeMartino, 185 AD3d 750 [2d Dept 2020]; Bank of NY v Stradford, 55 AD3d 765 [2d Dept 2008]. As such, the Court finds that Plaintiffs' request to vacate of the Judgments by Confession is untimely. Therefore, because Plaintiffs' Amended Complaint seeks to vacate the Judgments pursuant to CPLR § 5015(a)(3), that portion of the Amended Complaint is dismissed.

Based upon the foregoing, it is

ORDERED that Plaintiffs' motion for leave to file its Amended Complaint, pursuant to CPLR § 3025(b) is granted and the same (NYSCEF Doc. No. 146) is deemed served as of the date hereof; it is further,

ORDERED that the portion of Defendant Yellowstone, LLC's motion seeking summary judgment dismissing Plaintiffs' third cause of action sounding in vacatur of the Judgments by Confession pursuant to CPLR 5015(a)(3) is granted and this cause of action alleged in Plaintiffs' Amended Complaint is dismissed; and it is further,

ORDERED that the portion of Defendant Yellowstone, LLC's motion seeking summary judgment on Plaintiffs' cause of action under Mass Gen Law ch. 93A is denied as moot; and it is further,

ORDERED that Defendant David Glass's motion for summary judgment denied as moot; and it is further,

ORDERED that Defendant Yitzhak Stern's motion for summary judgment denied as moot; and it is further,

ORDERED that Defendants David Glass and Yitzhak Stern file Answers to Plaintiffs' Amended Complaint within thirty (30) days of the date hereof.

All arguments raised and materials submitted on these motions have been considered by the Court, notwithstanding the absence of specific reference thereto. All requests for relief not explicitly granted herein are denied, in the Court's discretion.

The parties are hereby advised that the Court will hold a preliminary/status conference on May 19, 2021 at 12:00 pm. At the conference, the Court will address Defendant Yitzhak Stern's outstanding motion pertaining to discovery (motion sequence #9) and the same is hereby made returnable on the date of the conference.1

The foregoing constitutes the Decision and Order of the Court.

New City, New York

E N T E R

April 9, 2021

HON. ROBERT M. BERLINER, J.S.C.

FOOTNOTES

1.   This conference will be held virtually via Microsoft Teams. At least two business days prior to the conference, Plaintiffs' counsel shall provide the Court with the email addresses of all counsel of record via letter on NYSCEF.

Robert M. Berliner, J.

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