RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED ON THE REVIEW OF THIS MOTION TO DISMISS. PAPERS NUMBERED NOTICES OF MOTION AND ANNEXED AFFIDAVITS 1 AFFIRMATION IN OPPOSITION 2 AFFIRMATION IN REPLY, MISLABELED AFFIRMATION IN OPPOSITION 3 DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: Plaintiff, Johnson Controls Security Solutions (Johnson) brought summons and complaint against Defendant, 3131 Grand Concourse Owners Corp. (Grand Concourse) on November 8, 2019, seeking alleged damages in the amount of $16,620.25 for breach of contract. Defendant now brings this motion to dismiss pursuant to Civil Practice Law and Rules §§3211 (a) (1), (3), (7), and (8), and (c), 327, or in the alternative, to transfer this action to Bronx County pursuant to New York City Civil Court Act §306. On December 15, 2020, this Court found both parties’ papers insufficient. Defendant’s motion included only an attorney’s affirmation, a document titled “commercial sales agreement,” dated July 17, 2017, a letter from Defendant’s attorney to Plaintiff, a 60-day past due notice, and unidentified pictures. Annexed to Plaintiff’s opposition is an affidavit of service, which is tilted to the side cutting off part of the index number; the same contract submitted by Defendant; a W-9 form; and a Delaware corporate name change form. Because of the COVID-19 pandemic, this Court gave the parties an opportunity to amend their papers, specifically ordering the parties to remit copies of the summons and complaint, the affidavit of service of the summons and complaint, and answer. Neither party complied with this order. CPLR 3211 (a)(3) Defendants move for dismissal for lack of capacity to sue (CPLR 3211 [a] [3]), claiming Plaintiff is not a party to the contract in question, which was between Tyco Integrated Security Solutions and itself. In opposition, Plaintiff annexes a showing that Plaintiff changed its name from Tyco Integrated Security LLC (Tyco) on June 13, 2017 and an IRS W9 form, verifying that Plaintiff was formerly known as Tyco. Nothing in the Delaware Limited Liability Company Act (6 DelC §18-101 et seq.) or the cases that cite it suggests that a mere name change creates a new, independent entity. Furthermore, the documents submitted by Defendant all show an intent to change the LLC’s name and nothing more. Therefore, Plaintiff and Tyco Integrated Security LLC are the same company. CPLR 3211 (a) (1) Dismissal pursuant to CPLR 3211 (a) (1) is warranted only if the documentary evidence submitted “utterly refutes plaintiff’s factual allegations” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326, 774 NE2d 1190 [2002]), “and a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v. Martinez, 84 NY2d 83, 88, 638 NE2d 511, 512 [1994]). For evidence to qualify as “documentary,” it must be “unambiguous, authentic, and undeniable” (Fontanetta v. John Doe 1, 73 AD3d 78. 84-86, 898 NYS2d 569 [2d Dept 2010]). Letters and email correspondence do not constitute documentary evidence (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997, 913 NYS2d 668 [2d Dept 2010]). Reports, minutes of meetings, or transcripts of hearing testimony are also not properly characterized as documentary evidence (Fontanetta v. John Doe 1, supra). As a result, the only documentary evidence annexed to Defendant’s submission is a copy of the 2017 contract between the parties. Plaintiff’s documentary evidence includes the contract and the aforementioned name change documents. The contract was signed in 2017. This action was filed in 2019. Residence is determined on the date of the commencement of the action (New York City Civil Court Act §301 [a]). Alone, the contract is not enough to refute Plaintiff’s allegations that Defendant cither resided or conducted business in Kings County at the time the summons and complaint was filed. CPLR 3211 (a) (7) On a motion to dismiss under CPLR 3211(a) (7) the court is “concerned with whether the pleading states a cause of action rather than the ultimate determination of the facts” (Stukuls v. State, 42 NY2d 272, 275, 366 NE2d 829, 831 [1977]). “Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 372 NE2d 17, 20 [1977]). Under CPLR 3211, “the pleading is to be afforded a liberal construction. [The court accepts] the facts as alleged in the complaint as true, accord plaintiff’s the benefit of every possible favorable inference, and determine[s] only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87 [1994] [internal citations omitted]). The complaint alleges breach of contract in the amount of $16,620.25 and therefore states a cause of action. CPLR 3211 (a) (8) A Court may dismiss an action for lack of personal jurisdiction (CPLR [a] [8]). Defendant alleges Plaintiff did not acquire personal jurisdiction because it failed to comply with CPLR 311 (a)(1), which states that personal service “upon a corporation…shall be made by delivering the summons…upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by taw to receive service” (CPLR 311 [a] [1]). However, the affidavit of service states that “Evelyn,” an “authorized agent,” accepted service on behalf of Defendant. “It is well settled that a process server’s affidavit of service constitutes prima facie evidence of proper service. [To] rebut this showing and raise an issue of fact necessitating a traverse hearing, [Defendant] was required to submit a sworn, nonconclusory denial of service” (Tzifil Realty Corp. v. Temammee, 46 Misc 3d 144 [A], 15 NYS3d 715 [App Term 2d, 11th, & 13th Jud Dists 2015] [internal citations omitted]). Defendant submitted no sworn affidavits denying service or rebutting Plaintiff’s affidavit of service. CPLR 3211 (c) CPLR 3211(c) permits the court, on notice to the parties, to treat a motion to dismiss made pursuant to subdivision (a) or (b) as a motion for summary judgment before issue is joined. The motion is available to a party attacking a pleading who has not pleaded yet, a defendant moving against a complaint before answering, for example, but it may not be used by a pleader…to foreclose a responsive pleading before an opponent has had a chance to answer the claim (City of Rochester v. Chiarella, 65 NY2d 92, 102 [1985]). Parties seeking to convert a motion under CPLR 3211 (c) must have the “opportunity to make an appropriate record” (Mihlovan v. Grozavu, 72 NY2d 506, 508, 531 NY2d 288, 289 [1988]). Therefore, the parties must receive “adequate notice” expressly from the court prior to a conversion (Id.). There are three exceptions to the notice requirement. The parties may receive adequate notice “by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course” (Id. at 508 [quoting Four Seasons Hotels Ltd. v. Vinnik, 127 AD2d 310, 320, 515 NYS2d 1, 8 (1st Dep't 1987)]). The parties may indicate that the case involves “a purely legal question rather than any issues of fact” (Id.). Finally, court may also grant 3211 (c) treatment if specifically requested by both sides. (Four Seasons Hotels Ltd. v. Vinnik, 127 AD2d at 320). CPLR 3211 (c)’s notice requirement obliges the parties to “make a complete record[,]…”come forward with any evidence that could possibly be considered” (Nonnon v. City of New York, 9 NY3d 825, 827, 874 NE2d 720, 722 [2007]), and “submit everything they’ve got” (Siegcl, N.Y. Prac. §270 [4th ed. 2007]). The evidence provided by both parties is insufficient to fulfill the notice requirement. There are no affidavits from anyone demonstrating personal knowledge of the facts of this case. The attorneys’ affirmations, on their own, arc “without evidentiary value and thus unavailing” (Zuckerman v. City of New York, 49 NY2d 557, 563 [1980], see also Victory M, LLC v. Frederic, 148 AD3d 1086 [2d Dept 2017]). Defendant’s documentary evidence consists of a single contract. There is nothing in either the motion or opposition to suggest that either Plaintiff or Defendant were charting a course toward summary judgment. Therefore, this Court denies Defendant’s request to convert its motion into one for summary judgment. INCONVENIENT FORUM The common-law doctrine of forum non conveniens, also articulated in CPLR 327, permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere. The burden rests upon the defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation and the court, after considering and balancing the various competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not. Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit. The court may also consider that…the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction. No one factor is controlling…. The rule rests upon justice, fairness and convenience…(Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 478-79, 467 NE2d 245, 247-48 [1984]). One of the important, but not determining, factors on an inconvenient forum motion is the residence of the parties (Temple v. Temple, 97 AD2d 757, 468 NYS2d 388 [2d Dept 1983]). However, neither party’s submissions include sworn statements from which this Court can determine their residence. CHANGE OF VENUE Plaintiff designated Kings County as the venue for this action, stating in the summons “Plaintiff resides in the county out-of-town” and in the complaint that Defendant is a resident of Kings County or transacts business in this County. Defendant moves this Court to transfer venue to Bronx County. This Court “may of its own motion and must on the motion of a party defendant transfer the action or proceeding to a proper county” (New York City Civil Court Act §306). Defendant’s motion must “specify the county to which the defendant desires the action or proceeding to be transferred and must state under oath facts showing that ground exists for such transfer” (Id.). Where venue is based on the residence of the defendant when the action is commenced (New York City Civil Court Act §301 [a]), a “corporation…shall be deemed a resident of any county wherein it transacts business, keeps an office, has an agency or is established by law (New York City Civil Court Act §305 [b]; see also Neurologic Services, P.C. v. ELRAC, Inc. 188 Misc2d 319, 320 [App Term 2001]). Here, Defendant provides no sworn statement providing facts that show Defendant is not a resident of Kings County, that the parties had no contact or business within Kings County or any other grounds for transfer. Accordingly, IT IS ORDERED, Defendant’s motion is denied. Dated: October 1, 2021
