Preview
FILED: BRONX COUNTY CLERK 01/30/2024 10:34 AM INDEX NO. 806834/2023E
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/30/2024
SUPREME COURT OF THE STATE OF NEW YORK,
BRONX COUNTY
_____________________________________________________________ x
SIGNATURE METAL AND MARBLE:
LLC d/b/a SIGNATURE IAS Part: 32 FEG
MAINTENANCE,
METAL AND MARBLE,
Index No.: 806834/2023E
.
Plamtiff,
NOTICE OF ENTRY
V.
APAISER PTY, LTD., :
:
Defendant.
_____________________________________________________________ x
PLEASE TAKE NOTICE that annexed hereto is a true and acemate copy of a decision
and order of the Honorable Fidel E. Gomez, dated January 29, 2024, and duly entered in the Office
of the County Clerk of Bronx County, the Supreme Court of the State of New York, on January
29, 2024.
Dated: New York, New York
January 30, 2024
K&L GATES LLP
By: /s/ Loly G. Tor
Loly G. Tor
Loly.tor(alklgates.com
599 Lexington Avenue
New York, New York 10022
Tel.: (212) 536-3900
Attorneys for Defendant
Apaiser Pty, Ltd.
1 of 25
FILED:
FILED : BRONX
BRONX COUNTY
COUNTY CLERK
CLERK 01/30/2024
2 9 / 2 02 4 10:34
0 4 : 2 6 AM INDEX
INDEX NO.
NO . 806834/2023E
8 O 6834 /2 O23E
01/ PlÈ
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 3 O
31 RECEIVED
RECEIVED NYSCEF : 01/30/2024
NYSCEF: 01/2 9/2 02 4
NEW YORK SUPREME COURT - COUNTY OF BRONX
PART 32
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF THE BRONX
------------------------------------------X
SIGNATURE METAL AND MARBLE
MAINTENANCE, LLC d/b/a SIGNATURE METAL
AND MARBLE,
Index No. 806834/2023E
Plaintiff,
Hon. FIDEL E. GOMEZ
- against - Justice
APAISER PTY LTD,
Defendant.
------------------------------------------X
The following papers numbered 1 to 4, Read on this Motion noticed of 11/14/23, and duly
submitted as no. 1 on the Motion Calendar of 11/14/23.
PAPERS NI TMBERED
Notice of Motion - Order to Show Cause - 1
Exhibits and Affidavits Annexed
Answermg Affidavit and Exhibits
Replying Affidavit and Exhibits
Notice of Cross-Motion - Affidavits and Exhibits 3
Pleadings - Exhibit
- Referee's Report - Minutes
Stipulation(s)
Filed Papers- Judgment of Foreclosure and Sale
Memorandum of Law 2, 4
Defendant's motion and plamtiff's cross-motion are decided in accordance with the Decision and
Order annexed hereto.
Dated:
1/29/24 Hon.
F EL E. GOMEZ, JSC
1.CHECK ONE O CASE DISPOSED X NON-FINAL DISPOSITION
2. MOTION/CROSS-MOTION IS O GRANTED (MOTION) O DENIED (MOTION)
X GRANTED IN PART O OTHER
3. CHECK IF APPROPRIATE. O SETTLE ORDER O FIDUCIARYAPPOINTMENT
O SUBMIT ORDER O REFEREE APPOINTMENT
O DO NOT POST O NEXT APPEARANCE DATE:
1 of
2 of 24
25
FILED:
FILED: BRONX
BRONX COUNTY
COUNTY CLERK
CLERK 01/30/2024
1 2 0 10:34
: AM
P
INDEX
INDBX NO.
NO. 806834/2023E
806834/2023B
NYSCEF
NYSCEF DOC.
DOC. NO. 30
NO. 31 RECEIVHD NYSCEF:
RECEIVED NYSCEF: 01/29/2024
01/30/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF THE BRONX
-_____________ _____---___x
SIGNATURE METAL AND MARBLE
MAINTENANCE, LLC d/b/a SIGNATURE
METAL AND MARBLE,
Plaintiff,
-against- DECISION AND ORDER
IndeX No. 806834/2023E
APAISER PTY LTD,
Defendants.
_____________________________________x
In the instant action, defendant Apaiser Pty Ltd (Apaiser) moves for an Order dismissing
the complaint, pursuant to CPLR §306-b, CPLR § 3211(a)(1), CPLR § 3211(a)(7) and CPLR §
3211(a)(8).
Plaintiff Signature Metal and Marble Maintenance, LI£ d/b/a Signature Metal and
cross-moves¹
Marble (Signature) opposes Apaiser's motion and for an Order, pursuant to CPLR
§§ 2001, 306-b and 308(5), deeming service already effectuated as proper, nunc pro tunc; or, in
'Signature submitted an affirmation of counsel "in opposition to motion to dismiss and in
crossmotion."
support of However, Signature failed to file or submit a notice of motion in
violation of CPLR § 2215. While New York courts have denied relief to a party that failed to
serve a formal notice of motion, effectively making a cross application for relief contained only
in an affirmation included among opposing papers (Hergerton v Hergerton, 235 AD2d 395, 396
[2d Dept 1997] ; Thomas v Drifters, 219 AD2d 639, 640 [2d Dept 1995]), courts retain discretion
to entertain requests for affmnative relief that do not meet the requirements of CPLR § 2215.
Factors to consider in granting such requests include the interrelatedness of the relief requested
by the nonmoving party and the relief requested in the main motion, the prominence in the
opposition papers of the affirmative request for relief and the movant's opportunity to address
that and the interest of judicial economy. the substance of Signature's cross-
request, Here,
motion directly relates to one of Apaiser's grounds for seeking dismissal of the complaint
(CPLR § 306-b). Further, the affirmative request in the crossmotion is prominently set forth in
counsel's affirmation and Apaiser had an opportunity to address that request, which it did, in its
reply memorandum of law. This militates in favor of entertaining Signature's request for
affirmative relief. Therefore, the Court will entertain signature's cross-motion.
-1-
3
2 of
of 25
24
FILED:
FILED : BRONX
BRONX COUNTY
COUNTY CLERK
CLERK 01/30/2024
1 2 0 10:34
: AM
P
INDEX
INDBX NO.
NO. 806834/2023E
806834/2023B
NYSCEF
NYSCEF DOC.
DOC. NO. 30
NO. 31 RECEIVED NYSCEF:
RECEIVED NYSCEF: 01/29/2024
01/30/2024
the alternative, granting Signature thirty (30) additional days to serve the summons and
complaint via email to Apaiser's attorneys; or, in the alternative, granting Signature a 120-day
extension of time to serve the complaint via personal service in a manner directed by the Court.
Apaiser opposes Signature's cross-motion.
For the reasons set forth hereinafter, Apaiser's motion is granted, in part, and Signature's
cross-motion is also granted, in part.
BACKGROUND
The complaint in the instant action alleges causes of action for breach of contract,
quantum meruit, unjust enrichment, account stated and breach of implied covenant of good faith
and fair dealing based upon Apaiser's failure to pay Signature for goods and services Signature
provided under a contract between Signature and Apaiser. Specifically, the complaint alleges as
follows: Signature contracted with Apaiser for Signature to provide, inter alia, architectural
panels and vanity repairs to the property located at 701 Seventh Avenue, New York, NY 10036
(the Premises). The agreed upon price and value of materials under the original contract,
including change orders and extra charges, is $424,310.01. Signature demanded payment of said
amount but Apaiser failed to pay, leaving an unpaid balance of $424,310.01. Apaiser accepted,
received and benefitted from the goods and services provided by Signature. Signature rendered
statements of account, billing statements and invoices to Apaiser and Apaiser accepted same
without dispute.
Apaiser moves for an Order dismissing the complaint pursuant to CPLR § 306-b and
CPLR §§ 3211(a)(1), (a)(7) and (a)(8). In support of dismissal pursuant to CPLR § 306-b and
CPLR § 3211(a)(8), Apaiser contends that it is an Australian company with no facilities or
current operations in New York, therefore, Signature is required to effect service of the
summons and complaint on Apaiser in accordance with the provisions of the Hague Convention
on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the
-2-
4
3 of
of 25
24
FILED:
FILED : BRONX
BRONX COUNTY
COUNTY CLERK
CLERK 01/30/2024
1 2 0 10:34
: AM
P
INDEX
INDBX NO.
NO. 806834/2023E
806834/2023B
NYSCEF
NYSCEF DOC.
DOC. NO. 30
NO. 31 RECEIVED NYSCEF:
RECEIVED NYSCEF: 01/29/2024
01/30/2024
Convention).2
Hague Service Apaiser avers that, contrary to the Hague Service Convention's
requirement that Signature serve Apaiser in compliance with Australian law, by employmg the
service of the State of Victoria's Sheriff's Office, Signature attempted to serve Apaiser through a
private party with no apparent affiliation with any Australian authority authorized to perform
service. Apaiser also avers that Signature attempted to serve Apaiser after the preeribed 120-day
time period under CPLR § 306-b.
In support of dismissal pursuant to CPLR §§ 3211(a)(1) and (a)(7), Apaiser contends that
Signature has failed to plead the terms of the alleged contractual relationship with any specificity
and the claims re expressly contradicted by the documentary evidence. Apaiser avers that,
although Signature alleges that it contracted with Apaiser and rendered its services pursuant to
charges,"
"an original contract, including change orders and extra Signature failed to provide the
Court with any documents substantiating those allegations. Apaiser notes that Signature did not
attached the alleged contract or any of the change orders to its complaint. Apaiser further
contends that Signature has not pleaded "even the most basic information regarding the contracts
terms."
or the relevant If anything, Signature avers, the only available record is a single
purchase order issued by Apaiser to Signature for a total value of $106,490, which Apaiser
disputes is owing. Apaiser further contends that, to the extent that any contractual relationship
existed, that relationship was between Signature and CNY Construction 701 LLC (CNY).
In support of its contentions, Apaiser submitted, inter alia, a purchase order, an invoice
requests.3
and several service The Apaiser purchase order, dated August 15, 2013, indicates that
2Convention on Service Aboard of Judicial and Extrajudicial Documents in Civil and
Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T1A.S.
No. 6638.
'Notably, Signature avers that Apaiser "has submitted literally no admissible evidence to
support its Attorney's, Ms. Tor's, assertion that Signature's claims lack merit because no
contract existed between Signature and Apaiser. Even if, purely in theory, Signature had not
placed admissible proof of the contract's existence on the Record, her assertion cannot be
respect."
considered as disproof of merits because it is inadmissible hearsay in every An
affirmation of an attorney who has no personal knowledge of the facts is without evidentiary
value (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). However, an affidavit or
affirmation of an attorney, even if s/he has no knowledge of the facts, may serve as the vehicle
_3.
5
4 of
of 25
24
FILED:
FILED : BRONX
BRONX COUNTY
COUNTY CLERK
CLERK 01/30/2024
1 2 0 10:34
: AM
P
INDEX
INDBX NO.
NO. 806834/2023E
806834/2023B
NYSCEF
NYSCEF DOC.
DOC. NO. 30
NO. 31 RECEIVED NYSCEF:
RECEIVED NYSCEF: 01/29/2024
01/30/2024
hours" works"
Signature was to provide "1000 straight time for "Rectification on the "Edition
Sq."
Times job in exchange for $106,490 US dollars. Pages 2 through 4 of the purchase order,
TERMS,"
all titled "PURCHASE ORDER sets forth various terms for the parties agreement. Of
note, section 2.1 provides that "[t]his Contract is formed when a Purchase Order has been issued
to the Contractor in acceptance of a written quotation, tender, or offer to supply from the
Contractor."
Section 2.2 provides that the Contract consists of the purchase order, the purchase
order terms and conditions, and any other attachments to the purchase order.
The Signature invoice, in the amount of $38,762.36 and dated July 13, 2013, is addressed
to Steven Colao at CNY Construction 701 LLC and describes the work as "Provide Apaiser
Project."
Vanity repairs for the 701 Seventh Ave
The ten Signature service requests, dated between July 16, 2018 and July 30, 2018, state
York"
the location "701-7th Ave New in handwriting. Seven of the ten service requests state
CONSTRUCTION"
"CNY in handwriting at the top of the request. The remaining three service
"Customer"
requests are blank in that area. All of the service requests bear a signature of a CNY
employee.
In opposition to Apaiser's motion and in support of its cross-motion, Signature contends
that Apaiser's motion should be denied and Signature's cross-motion granted because: (1)
Signature has met the standard for service to be accepted nunc pro tunc; (2) if nunc pro tune
service is denied, an extension of time to serve and service upon Apaiser again will permit
technically lawful jurisdiction over Apaiser without any prejudice to Apaiser's rights; and (3)
dismissal pursuant to CPLR § 306-b should not be granted because Apaiser is coming to the
Court with unclean hands by purposefully failing to register as a foreign corporation with the
for the submission of the contract between the parties and related documents (id.; Advanced
Alternative Media, Inc. v Hindlin, 220 AD3d 474, 474 475 [1st Dept 2023]; De-Spec, Inc. v
Sadick, 147 AD3d 425, 425 [1st Dept 2017]). The August 15, 2018 purchase order is also
admissible for the independent reason that both parties submit and rely on it (Carey v Toy
34*
Industry Association TM, Inc., 216 AD3d 404, 405 [1st Dept 2023] ; Rosa v 47 East Street
(NY), L.P., 208 AD3d 1075, 1079 [1st Dept 2022]).
6
5 of
of 25
24
FILED:
FILED : BRONX
BRONX COUNTY
COUNTY CLERK
CLERK 01/30/2024
1 2 0 10:34
: AM
P
INDEX
INDBX NO.
NO. 806834/2023E
806834/2023B
NYSCEF
NYSCEF DOC.
DOC. NO. 30
NO. 31 RECEIVED NYSCEF:
RECEIVED NYSCEF: 01/29/2024
01/30/2024
New York Secretary of State to avoid service of process upon it in New York in violation of
§1312(a).*
Business Corporation Law (BCL)
In support of its contentions, Signature submitted, inter alia, the affidavit of Robin
Eagleton, its Vice President and General Manager wherein she states as follows: She has read
and is fully familiar with Signature's complaint. The allegations in the complaint, to her
pemonal knowledge, are truthful and accurate, with the sole exception of statements asserted or
implied to be upon information and belief. She is Signature's Custodian of Records. Her
knowledge is based on her review of Signature's business records, which she attached to her
affidavit.5
Eagleton attached to her affidavit copies of an Apaiser purchase order, dated August
15, 2018, invoices and related service requests. The Signature purchase order, addressed
Preview
FILED: BRONX COUNTY CLERK 01/30/2024 10:34 AM INDEX NO. 806834/2023E NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/30/2024 SUPREME COURT OF THE STATE OF NEW YORK, BRONX COUNTY _____________________________________________________________ x SIGNATURE METAL AND MARBLE: LLC d/b/a SIGNATURE IAS Part: 32 FEG MAINTENANCE, METAL AND MARBLE, Index No.: 806834/2023E . Plamtiff, NOTICE OF ENTRY V. APAISER PTY, LTD., : : Defendant. _____________________________________________________________ x PLEASE TAKE NOTICE that annexed hereto is a true and acemate copy of a decision and order of the Honorable Fidel E. Gomez, dated January 29, 2024, and duly entered in the Office of the County Clerk of Bronx County, the Supreme Court of the State of New York, on January 29, 2024. Dated: New York, New York January 30, 2024 K&L GATES LLP By: /s/ Loly G. Tor Loly G. Tor Loly.tor(alklgates.com 599 Lexington Avenue New York, New York 10022 Tel.: (212) 536-3900 Attorneys for Defendant Apaiser Pty, Ltd. 1 of 25 FILED: FILED : BRONX BRONX COUNTY COUNTY CLERK CLERK 01/30/2024 2 9 / 2 02 4 10:34 0 4 : 2 6 AM INDEX INDEX NO. NO . 806834/2023E 8 O 6834 /2 O23E 01/ PlÈ NYSCEF NYSCEF DOC. DOC. NO. NO. 3 O 31 RECEIVED RECEIVED NYSCEF : 01/30/2024 NYSCEF: 01/2 9/2 02 4 NEW YORK SUPREME COURT - COUNTY OF BRONX PART 32 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX ------------------------------------------X SIGNATURE METAL AND MARBLE MAINTENANCE, LLC d/b/a SIGNATURE METAL AND MARBLE, Index No. 806834/2023E Plaintiff, Hon. FIDEL E. GOMEZ - against - Justice APAISER PTY LTD, Defendant. ------------------------------------------X The following papers numbered 1 to 4, Read on this Motion noticed of 11/14/23, and duly submitted as no. 1 on the Motion Calendar of 11/14/23. PAPERS NI TMBERED Notice of Motion - Order to Show Cause - 1 Exhibits and Affidavits Annexed Answermg Affidavit and Exhibits Replying Affidavit and Exhibits Notice of Cross-Motion - Affidavits and Exhibits 3 Pleadings - Exhibit - Referee's Report - Minutes Stipulation(s) Filed Papers- Judgment of Foreclosure and Sale Memorandum of Law 2, 4 Defendant's motion and plamtiff's cross-motion are decided in accordance with the Decision and Order annexed hereto. Dated: 1/29/24 Hon. F EL E. GOMEZ, JSC 1.CHECK ONE O CASE DISPOSED X NON-FINAL DISPOSITION 2. MOTION/CROSS-MOTION IS O GRANTED (MOTION) O DENIED (MOTION) X GRANTED IN PART O OTHER 3. CHECK IF APPROPRIATE. O SETTLE ORDER O FIDUCIARYAPPOINTMENT O SUBMIT ORDER O REFEREE APPOINTMENT O DO NOT POST O NEXT APPEARANCE DATE: 1 of 2 of 24 25 FILED: FILED: BRONX BRONX COUNTY COUNTY CLERK CLERK 01/30/2024 1 2 0 10:34 : AM P INDEX INDBX NO. NO. 806834/2023E 806834/2023B NYSCEF NYSCEF DOC. DOC. NO. 30 NO. 31 RECEIVHD NYSCEF: RECEIVED NYSCEF: 01/29/2024 01/30/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX -_____________ _____---___x SIGNATURE METAL AND MARBLE MAINTENANCE, LLC d/b/a SIGNATURE METAL AND MARBLE, Plaintiff, -against- DECISION AND ORDER IndeX No. 806834/2023E APAISER PTY LTD, Defendants. _____________________________________x In the instant action, defendant Apaiser Pty Ltd (Apaiser) moves for an Order dismissing the complaint, pursuant to CPLR §306-b, CPLR § 3211(a)(1), CPLR § 3211(a)(7) and CPLR § 3211(a)(8). Plaintiff Signature Metal and Marble Maintenance, LI£ d/b/a Signature Metal and cross-moves¹ Marble (Signature) opposes Apaiser's motion and for an Order, pursuant to CPLR §§ 2001, 306-b and 308(5), deeming service already effectuated as proper, nunc pro tunc; or, in 'Signature submitted an affirmation of counsel "in opposition to motion to dismiss and in crossmotion." support of However, Signature failed to file or submit a notice of motion in violation of CPLR § 2215. While New York courts have denied relief to a party that failed to serve a formal notice of motion, effectively making a cross application for relief contained only in an affirmation included among opposing papers (Hergerton v Hergerton, 235 AD2d 395, 396 [2d Dept 1997] ; Thomas v Drifters, 219 AD2d 639, 640 [2d Dept 1995]), courts retain discretion to entertain requests for affmnative relief that do not meet the requirements of CPLR § 2215. Factors to consider in granting such requests include the interrelatedness of the relief requested by the nonmoving party and the relief requested in the main motion, the prominence in the opposition papers of the affirmative request for relief and the movant's opportunity to address that and the interest of judicial economy. the substance of Signature's cross- request, Here, motion directly relates to one of Apaiser's grounds for seeking dismissal of the complaint (CPLR § 306-b). Further, the affirmative request in the crossmotion is prominently set forth in counsel's affirmation and Apaiser had an opportunity to address that request, which it did, in its reply memorandum of law. This militates in favor of entertaining Signature's request for affirmative relief. Therefore, the Court will entertain signature's cross-motion. -1- 3 2 of of 25 24 FILED: FILED : BRONX BRONX COUNTY COUNTY CLERK CLERK 01/30/2024 1 2 0 10:34 : AM P INDEX INDBX NO. NO. 806834/2023E 806834/2023B NYSCEF NYSCEF DOC. DOC. NO. 30 NO. 31 RECEIVED NYSCEF: RECEIVED NYSCEF: 01/29/2024 01/30/2024 the alternative, granting Signature thirty (30) additional days to serve the summons and complaint via email to Apaiser's attorneys; or, in the alternative, granting Signature a 120-day extension of time to serve the complaint via personal service in a manner directed by the Court. Apaiser opposes Signature's cross-motion. For the reasons set forth hereinafter, Apaiser's motion is granted, in part, and Signature's cross-motion is also granted, in part. BACKGROUND The complaint in the instant action alleges causes of action for breach of contract, quantum meruit, unjust enrichment, account stated and breach of implied covenant of good faith and fair dealing based upon Apaiser's failure to pay Signature for goods and services Signature provided under a contract between Signature and Apaiser. Specifically, the complaint alleges as follows: Signature contracted with Apaiser for Signature to provide, inter alia, architectural panels and vanity repairs to the property located at 701 Seventh Avenue, New York, NY 10036 (the Premises). The agreed upon price and value of materials under the original contract, including change orders and extra charges, is $424,310.01. Signature demanded payment of said amount but Apaiser failed to pay, leaving an unpaid balance of $424,310.01. Apaiser accepted, received and benefitted from the goods and services provided by Signature. Signature rendered statements of account, billing statements and invoices to Apaiser and Apaiser accepted same without dispute. Apaiser moves for an Order dismissing the complaint pursuant to CPLR § 306-b and CPLR §§ 3211(a)(1), (a)(7) and (a)(8). In support of dismissal pursuant to CPLR § 306-b and CPLR § 3211(a)(8), Apaiser contends that it is an Australian company with no facilities or current operations in New York, therefore, Signature is required to effect service of the summons and complaint on Apaiser in accordance with the provisions of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the -2- 4 3 of of 25 24 FILED: FILED : BRONX BRONX COUNTY COUNTY CLERK CLERK 01/30/2024 1 2 0 10:34 : AM P INDEX INDBX NO. NO. 806834/2023E 806834/2023B NYSCEF NYSCEF DOC. DOC. NO. 30 NO. 31 RECEIVED NYSCEF: RECEIVED NYSCEF: 01/29/2024 01/30/2024 Convention).2 Hague Service Apaiser avers that, contrary to the Hague Service Convention's requirement that Signature serve Apaiser in compliance with Australian law, by employmg the service of the State of Victoria's Sheriff's Office, Signature attempted to serve Apaiser through a private party with no apparent affiliation with any Australian authority authorized to perform service. Apaiser also avers that Signature attempted to serve Apaiser after the preeribed 120-day time period under CPLR § 306-b. In support of dismissal pursuant to CPLR §§ 3211(a)(1) and (a)(7), Apaiser contends that Signature has failed to plead the terms of the alleged contractual relationship with any specificity and the claims re expressly contradicted by the documentary evidence. Apaiser avers that, although Signature alleges that it contracted with Apaiser and rendered its services pursuant to charges," "an original contract, including change orders and extra Signature failed to provide the Court with any documents substantiating those allegations. Apaiser notes that Signature did not attached the alleged contract or any of the change orders to its complaint. Apaiser further contends that Signature has not pleaded "even the most basic information regarding the contracts terms." or the relevant If anything, Signature avers, the only available record is a single purchase order issued by Apaiser to Signature for a total value of $106,490, which Apaiser disputes is owing. Apaiser further contends that, to the extent that any contractual relationship existed, that relationship was between Signature and CNY Construction 701 LLC (CNY). In support of its contentions, Apaiser submitted, inter alia, a purchase order, an invoice requests.3 and several service The Apaiser purchase order, dated August 15, 2013, indicates that 2Convention on Service Aboard of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T1A.S. No. 6638. 'Notably, Signature avers that Apaiser "has submitted literally no admissible evidence to support its Attorney's, Ms. Tor's, assertion that Signature's claims lack merit because no contract existed between Signature and Apaiser. Even if, purely in theory, Signature had not placed admissible proof of the contract's existence on the Record, her assertion cannot be respect." considered as disproof of merits because it is inadmissible hearsay in every An affirmation of an attorney who has no personal knowledge of the facts is without evidentiary value (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). However, an affidavit or affirmation of an attorney, even if s/he has no knowledge of the facts, may serve as the vehicle _3. 5 4 of of 25 24 FILED: FILED : BRONX BRONX COUNTY COUNTY CLERK CLERK 01/30/2024 1 2 0 10:34 : AM P INDEX INDBX NO. NO. 806834/2023E 806834/2023B NYSCEF NYSCEF DOC. DOC. NO. 30 NO. 31 RECEIVED NYSCEF: RECEIVED NYSCEF: 01/29/2024 01/30/2024 hours" works" Signature was to provide "1000 straight time for "Rectification on the "Edition Sq." Times job in exchange for $106,490 US dollars. Pages 2 through 4 of the purchase order, TERMS," all titled "PURCHASE ORDER sets forth various terms for the parties agreement. Of note, section 2.1 provides that "[t]his Contract is formed when a Purchase Order has been issued to the Contractor in acceptance of a written quotation, tender, or offer to supply from the Contractor." Section 2.2 provides that the Contract consists of the purchase order, the purchase order terms and conditions, and any other attachments to the purchase order. The Signature invoice, in the amount of $38,762.36 and dated July 13, 2013, is addressed to Steven Colao at CNY Construction 701 LLC and describes the work as "Provide Apaiser Project." Vanity repairs for the 701 Seventh Ave The ten Signature service requests, dated between July 16, 2018 and July 30, 2018, state York" the location "701-7th Ave New in handwriting. Seven of the ten service requests state CONSTRUCTION" "CNY in handwriting at the top of the request. The remaining three service "Customer" requests are blank in that area. All of the service requests bear a signature of a CNY employee. In opposition to Apaiser's motion and in support of its cross-motion, Signature contends that Apaiser's motion should be denied and Signature's cross-motion granted because: (1) Signature has met the standard for service to be accepted nunc pro tunc; (2) if nunc pro tune service is denied, an extension of time to serve and service upon Apaiser again will permit technically lawful jurisdiction over Apaiser without any prejudice to Apaiser's rights; and (3) dismissal pursuant to CPLR § 306-b should not be granted because Apaiser is coming to the Court with unclean hands by purposefully failing to register as a foreign corporation with the for the submission of the contract between the parties and related documents (id.; Advanced Alternative Media, Inc. v Hindlin, 220 AD3d 474, 474 475 [1st Dept 2023]; De-Spec, Inc. v Sadick, 147 AD3d 425, 425 [1st Dept 2017]). The August 15, 2018 purchase order is also admissible for the independent reason that both parties submit and rely on it (Carey v Toy 34* Industry Association TM, Inc., 216 AD3d 404, 405 [1st Dept 2023] ; Rosa v 47 East Street (NY), L.P., 208 AD3d 1075, 1079 [1st Dept 2022]). 6 5 of of 25 24 FILED: FILED : BRONX BRONX COUNTY COUNTY CLERK CLERK 01/30/2024 1 2 0 10:34 : AM P INDEX INDBX NO. NO. 806834/2023E 806834/2023B NYSCEF NYSCEF DOC. DOC. NO. 30 NO. 31 RECEIVED NYSCEF: RECEIVED NYSCEF: 01/29/2024 01/30/2024 New York Secretary of State to avoid service of process upon it in New York in violation of §1312(a).* Business Corporation Law (BCL) In support of its contentions, Signature submitted, inter alia, the affidavit of Robin Eagleton, its Vice President and General Manager wherein she states as follows: She has read and is fully familiar with Signature's complaint. The allegations in the complaint, to her pemonal knowledge, are truthful and accurate, with the sole exception of statements asserted or implied to be upon information and belief. She is Signature's Custodian of Records. Her knowledge is based on her review of Signature's business records, which she attached to her affidavit.5 Eagleton attached to her affidavit copies of an Apaiser purchase order, dated August 15, 2018, invoices and related service requests. The Signature purchase order, addressed