throbber
FILED: NASSAU COUNTY CLERK 07/12/2017
`FILED: NASSAU COUNTY CLERK 07m2017
`
`NYSCEF DOC. NO. 30
`NYSCEF DOC. NO. 30
`
`INDEX NO. 603365/2016
`
`INDEX NO~ 603365/2016
`
`
`
`
`
`
`RaCaIVaD VYSCEF: 07/13/2017
`RECEIVED NYSCEF: 07/13/2017
`
`SHORT FORM ORDER
`
`SUPREME COURT - STATE OF NEW YORK
`
`Present:
`
`HON. ROY S. MAHON
`
`Jusflce
`
`TRIAL/IAS PART 3
`
`INDEX NO. 603365116
`
`CLIPPER MAGAZINE LLC dlbla
`
`CLIPPER MAGAZINE,
`
`Plaintiff(s),
`
`- against -
`
`MARJORIE JUSZCZAK, individually and dlbla
`AD DIVISION alkla ADDIVISION,
`
`Defendant(s).
`
`DECISION AFTER INQUEST
`
`By Order of the Hon. George R. Peck dated March 16, 2017, this matter was set down for inquest
`to assess damages following summary judgment granted in favor of the plaintiff. On April 29, 2017
`plaintiffs appeared by counsel to conduct the inquest. The defendants appeared without counsel and
`conducted their own defense.
`
`Plaintiffs first witness was Tonda Adams who testified that she is employed by plaintiff as a
`' collections clerk for plaintiff which is in the coupon magazine business. According to the witness,
`customers seeking to place advertising in the magazine do so by placing "insertion orders" over the
`internet to plaintiff's website which lists the terms and conditions of the order by a computer link. The
`witness stated that the defendant placed such orders with the plaintiff's sales representative on behalf
`of clients she was representing which caused the plaintiff to publish advertisements on their behalf.
`Thereafter, invoices were generated which were never paid by the defendants (see plaintiff's #2, #3, #4,
`#5, #6, #7 and #8 in Evidence )
`
`Upon cross examination, the witness indicated while she was unaware if the accounts in question
`constituted all of the defendants' accounts. No payments made by the defendant to satisfy her
`indebtedness for the outstanding accounts would have been misapplied.
`
`Plaintiff's second witness was Mr. Charles Balistreri, the managing attorney of plaintiff's attorneys.
`He testified that his law firm engages primarily in commercial collection cases.
`In support of plaintiff's
`applications for attorney's fees pied as the second cause of action in plaintiff's complaint, the witness
`testified that he usually works on a contingency basis, charging twenty five to thirty five percent of any
`recovered assets as his fee if, after investigation, he feels that a prosecution of a collection action is
`warranted.
`
`lof2
`1 of 2
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`

`

`FILED: NASSAU COUNTY CLERK 07/12/2017
`FILED: NASSAU COUNTY CLERK 07m2017
`
`NYSCEF DOC. NO. 30
`NYSCEF DOC. NO. 30
`
`INDEX NO. 603365/2016
`INDEX NO~ 603365/2016
`
`
`
`
`
`RaCaIVaD VYSCEF: 07/13/2017
`RECEIVED NYSCEF: 07/13/2017
`
`
`
`In the instant case, he testified that he unsuccessfully attempted to resolve the case with the
`defendant, and later invested between 30 and 40 hours in litigation. The witness did not produce any
`time sheets to support his testimony.
`
`After the testimony of the second witness, the plaintiff rested its case. Neither side made any
`motions. The defense elected to present a case.
`
`The defendant was the first witness to testify on her own behalf. She testified that after working
`for plaintiff for 4 years, she left to start her own agency which placed over $1,500,000.00 in advertising
`with the plaintiff. She would pay for the advertising by credit card or check and bill a commission together
`with the advertising costs to her customers. The defendant testified that she is entitled to a credit of
`approximately $37,000.00. She was unsuccessful in reconciling customer payments with invoices
`supplied by the plaintiff.
`
`The defendant's second witness was Ms. Lisa Cassina who testified that she knew the defendant
`
`from her dealings with the plaintiff. She confirmed that the defendant had more than 3 accounts with the
`plaintiff, but was unaware of any fraudulent charges.
`
`The third witness to testify for the defense was Mr. Eva Pope who contracted with the defendant
`on plaintiff's behalf.
`
`After the third witness, the defense rested its case. The plaintiff declined to offer a rebuttal case.
`Plaintiff moved for a directed verdict in the amount of three invoices presented at trial and for an award
`of attorney's fees, as well as a dismissal of counterclaims. The defendants opposed the motion and
`cross moved to dismiss plaintiff's claims. The Court reserved decision in the motions and requested
`post-trial memoranda by May 22, 2017. Ultimately, only plaintiff made a post-trial submission on May 9,
`2017.
`
`After inquest, the Court credits the testimony and evidence adduced by the plaintiff and awards
`$81,253.00 to the plaintiff as money damages and the sum of $24,375.96 as attorney's fees. Plaintiff's
`motion for a directed verdict and defendant's cross motion to dismiss plaintiff's claims, are both denied.
`
`That branch of plaintiff's post-trial motions seeking dismissal of the defendant's counterclaims,
`is similarly denied. While summary judgment in favor of the plaintiff was granted by the Hon. George
`R. Peck, the order is silent as to the disposition of the counterclaims. A review of defendants'
`counterclaims from the marked pleadings submitted at inquest reveal that they are arguably in the nature
`of a set-off. Accordingly, the parties are directed to appear at the New York State Supreme Court,
`100 Supreme Court Drive, Mineola, NY on August 1, 2017 at the chambers of the Hon. George R.
`Peck for a conference regarding the status of defendants counterclaims.
`
`This constitutes the decision and Order of the Court. Let judgment enter accordingly.
`
`DATED:é/Zf/M/7
`
`.............%5%é¢"1...................
`MENTEREE?
`
`JUL122017
`
`NASSAU COUNTY
`COUNTY CLERK8 OFFICE
`
`20f2
`2 of 2
`
`

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