throbber
FILED: NASSAU COUNTY CLERK 10/12/2017
`FILED: NASSAU COUNTY CLERK 10m2017
`
`NYSCEF Doci NO. 35
`NYSCEF DOC. NO. 35
`
`603365/2016
`INDEX NO. 603365/2016
`INDEX NO.
`
`
`
`
`
`10/17/2017
`RaCaIVaD VYSCEF:
`RECEIVED NYSCEF: 10/17/2017
`
`
`
`SHORT FORM ORDER
`
`SUPREME COURT - STATE OF NEW YORK
`
`Present:
`
`HON. ROY S. MAHON
`
`Jusfice
`
`TRIAL/IAS PART 3
`
`INDEX NO. 603365l16
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`CLIPPER MAGAZINE LLC dlbla
`
`CLIPPER MAGAZINE,
`
`Plaintiff(s),
`
`- against -
`
`MARJORIE JUSZCZAK, individually and dlbla
`AD DIVISION alkla ADDIVISION,
`,
`
`Defendant(s).
`
`The Court initially observes that the March 16, 2017 Order of the Hon. George R. Peck set forth:
`
`"Upon the foregoing papers, this motion submitted by the plaintiff, seeking an order
`pursuant to CPLR §3212 granting summary judgment against the defendant and an
`immediate trial on the issue of advertising fees owed by defendant is decided as provided
`herein.
`
`The plaintiff commenced the instant action by filing a summons and complaint on August
`8, 2014.
`
`It appears from a review of the documentation presented that all necessary parties have
`been properly served with notice of this application.
`
`The plaintiff and defendant entered into a contract for advertising services to be
`performed by plaintiff. Plaintiff alleges the sum of$105,629. 15 is due and owing plaintiff.
`Defendant, in her opposition papers, does not dispute that she received services from
`plaintiff northat she is liable for fees. Defendant does dispute the amount of fees due and
`owing to plaintiff.
`
`Accordingly, upon the foregoing papers, it is hereby
`
`ORDERED, that this matter shell be set down for an inquest, subject to the approval of
`the Justice there presiding and provided a note of issue has been filed at least ten (10)
`days prior thereto, in the Calendar Control part on the 27th day of April 2017 at 9:30
`am. to assess the appropriate amount of damages. This directive with respect to a
`hearing is subject to the right of the Justice presiding in the Calendar Control Part to refer
`the matter to a Justice, Judicial hearing Officer or a Court Attorney/Referee as he or she
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`FILED: NASSAU COUNTY CLERK 10/12/2017
`FILED: NASSAU COUNTY CLERK 10m2017
`
`NYscéF Doc: NO. 35
`NYSCEF DOC. NO. 35
`
`603365/2016
`INDEX NO. 603365/2016
`INDEX NO.
`
`
`
`
`
`10/17/2017
`RaCaIVaD VYSCEF:
`RECEIVED NYSCEF: 10/17/2017
`
`
`
`deems appropriate: and it is further
`
`The foregoing constitutes the decision and order ofthis Court. All applications specifically
`addressed herein are denied."
`
`On April 29, 2017 the action was sent to this Part for inquest. On June 28, 2017, the Court issued
`its Decision After Inquest which stated:
`
`"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 pled 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.
`
`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 forthe 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 bythe 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
`
`20f4
`2 of 4
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`

`FILED: NASSAU COUNTY CLERK 10/12/2017
`FILED: NASSAU COUNTY CLERK 10m2017
`
`NYSCEF Doc‘. NO. 35
`NYSCEF DOC. NO. 35
`
`603365/2016
`INDEX NO. 603365/2016
`INDEX NO.
`
`
`
`
`
`10/17/2017
`R«.c«.Iv«.D \iYSCEF:
`RECEIVED NYSCEF: 10/17/2017
`
`
`
`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.
`
`Afterthe 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 summaryjudgment 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 fora conference regarding the status of defendants counterclaims.
`
`This constitutes the decision and Order of the Court. Let judgment enter accordingly."
`
`Pursuant to this Court's Decision After Inquest, the respective parties appeared before Judge
`Peck on September 8, 2017 for conference which resulted in a September 11, 2017 Order which
`provided:
`
`"The parties appeared before this court on September 8, 2017. During preliminary
`discussions by this court as to the issues to be resolved, the defendant, Marjorie Juszczak
`claims that she submitted a set of papers to the court delineating her arguments and
`position. The plaintiff admits that he received those papers. Upon inquiry to the Law
`Secretary of Judge Mahon, no such set of documentation was received. The reason for
`this is unclear but nevertheless, it is for Judge Mahon to determine what, if any bearing,
`those papers would have no his decision.
`
`For the previously mentioned reasons, the matter is referred to Judge Mahon for review
`consistent with this order and to be returned to this court if Judge Mahon rejects
`acceptance of the papers.
`
`The foregoing constitutes the decision and order of this court. All applications not
`specifically addressed herein are denied."
`
`To the extent as articulated in this Court's Order of June 27, 2017, the defendants alleged post
`trial memorandum was not received by this Court. The defendant was advised that any review of the
`defendant's alleged submission must be brought by motion to reargue. As of this date, there has been
`
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`3 of 4
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`

`

`FILED: NASSAU COUNTY CLERK 10/12/2017
`FILED: NASSAU COUNTY CLERK 10m2017
`NYSC'EF Doc”. NO. 35
`NYSCEF DOC. NO. 35
`
`INDEX NO. 603365/2016
`INDEX NO~ 603365/2016
`
`
`
`
`
`R«.c«.1v«.o \iYSCEF: 10/17/2017
`RECEIVED NYSCEF: 10/17/2017
`
`
`
`no such application.
`
`In examining the March 16, 2017 Order of Justice Peck, supra, that Court did not address the
`issue of the defendant's counterclaim. Said counterclaim was before the IAS Court since that Court
`
`would have the pleadings before it in consideration of the summaryjudgment application by the plaintiff.
`In the absence of addressing the counterclaim in the March 16, 2017 Order, supra, this Court referred
`the issue of the counterclaim to Justice Peck.
`In light of the fact that the counterclaim was not an issue
`at the time of the hearing as per Judge Peck's Order, it is properly addressed by Justice Peck and not
`this Court. The respective parties shall appear in Justice Peck's Part on November 9, 2017.
`
`so ORDERED.
`
`DATED: /o/2/M 7
`
`4/7
`
`.................,
`
`law/gay;..............
`
`J.S.C.
`
`EN'E'EFilED
`
`OCT 122017
`
`NASSAU COUNTY
`COUNTY CLERK’S OFFlCE
`
`4of4
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