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ROTHENIERG, UP STATE OF NEW YORK COUNTY OF MONROE B. THOMAS GOLISANO, SUPREME COURT Plaintiff, vs. Index No.: 2015/10706 VITOCH INTERIORS LTD., ARTHUR VITOCH, and NORMA GOLDMAN, Defendants. NOTICE OF MOTION MOTION BY: Geiger and Rothenberg, LLP DATE, TIME & PLACE: SUPPORTING PAPERS: RELIEF REQUESTED: DEMAND PURSUANT TO CPLR 2214(b): Attorneys for Defendants A Special ‘Term of this Court to be held on a date and time to be set by the Court, in the Hall of Justice, Rochester, NY 14614. Attorney's affirmation of David Rothenberg, Esq. dated January 28, 2016, affidavit of Norma Goldman sworn to on January 27, 2016, and the exhibits annexed to both. An order pursuant to CPLR 3212 granting defendants summary judgment dismissing plaintifi’s complaint, together with such other and further relief as to the Court seems just, proper, and equitable. Answering papers, if any, are hereby demanded seven (7) days prior to the return date of this motion. ROTHIENHERG, we Dated: January 28, 2016 Rochester, NY To: Glenn E, Pezzulo, Esq. Attorney for Plaintiff 36 West Main Street, Suite 500 Rochester, New York 14614 David Rothenberg, Esq. GEIGER and ROPNED Attorneys for Defendants 45 Exchange Street, Suite 800 Rochester, New York 14614 (585) 232-1946 Fax: (585) 232-4746 Email:drothenberg@geigroth.com RG, LLP CULLY MARKS TANENBAUM & PEZZULO LLP srs v0 ROPHENHERG, 10 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE B, THOMAS GOLISANO, Plaintiff, vs. Index No.: 2015/10706 VITOCH INTERIORS LTD, ARTHUR VITOCH, and NORMA GOLDMAN, Defendants, ATTORNEY’S AFFIRMATION DAVID ROTHENBERG, an attorney admitted to practice before the courts of this state, affirms, under penalties of perjury: 1. Tama partner in the firm of Geiger and Rothenberg, LLP, attorneys for defendants herein. 2. [submit this affirmation in support of defendants’ motion pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint in its entirety, A. — Plaintiff's Complaint 3. This is an action for breach of contract and unjust enrichment. Annexed hereto as Exhibit A is a copy of plaintiff's complaint, 4. Annexed hereto as Exhibit B is a copy of defendants’ answer with affirmative defenses and counterclaims, orIGeRaKe RomusnnERG, 5. Asallleged in his complaint, plaintiff is the owner of a luxury yacht known as the MY Laurel. Plaintiff hired defendant Norma Goldman (“Goldman”), who is an interior designer and decorator to refurbish the interior of the Laurel. 6. Defendant Goldman is an independent contractor who often works through defendant Vitoch Interiors Ltd. (“Vitoch”); defendant Arthur Vitoch is the owner of defendant Vitoch. 7. Annexed hereto as Exhibit Cis a copy of the transcript of plaintiff's deposition, which took place on December 23, 2015. 8. As confirmed by plaintiff during his deposition, this action only concerns the price that plaintiff was charged for goods that were purchased for the Laurel in connection with its refurbishment. Plaintiff is not suing with respect to the quality of any of these goods (Deposition transcript of B. Thomas Golisano dated December 23, 2015 (“Tr.") 16). 9. Furthermore, plaintiff is not suing with respect to defendant Goldman's hourly charges in connection with her refurbishment of the Laurel (Tr. 114-15). B, Background 10. _ Plaintiff and defendant Goldman had done business prior to the refurbishment of the Laurel. x1. In2007, plaintiff hired defendant Goldman for interior design work on his home in Fishers, New York (Tr. 17). 12, Plaintiff testified that he cannot recall the terms under which he engaged defendant Goldman in 2007; he recalls no contract between them, whether written or verbal (Tr. 20). x1cR aN xoriENDERG, tr 13. Plaintiff testified that he was satisfied with the work defendant Goldman did in 2007 (Tr, 27). 14. Acouple years after the residential job, plaintiff hired defendant Goldman once more for a few additional items relating to his home in Fishers (Tr. 27-28), 15. Plaintiff testified that he was happy with the work defendant Goldman did for the residential job (Tr. 27). C. Plaintiff Hired Defendant’ Goldman to Refurbish the Laurel. 16. This lawsuit arises out of the sale of goods for use on a luxury yacht, purchased by the plaintiff and named the MY Laurel (“Laurel”). 17. Plaintiff described the Laurel as a motor yacht, 240 feet long by 40 feet wide, with a cruising distance of about 4,000 miles, It has five staterooms, in addition to the owner's suite, and sails with a crew of 20 (Tr. 31). 18. Plaintiff purchased the MY Laurel in 2013 and then contacted defendant Goldman, to see if she was interested in doing work in relation to the refurbishment of the yacht (Tr. 42). 19. Plaintiff invited defendant Goldman to tour the yacht and give him certain ideas about design. 20. Defendant Goldman met plaintiff in November 2013, toured the Laurel, spent the night on the yacht with her husband, and then discussed certain design concepts with the plaintiff (Tr. 43). 21. Plaintiff next met with defendant Goldman at his residence in Naples, Florida, also in the fall of 2013. He testified that during the second meeting, defendant oxIcER Avo ROTHENBERG, ue Goldman verbally gave plaintiff an estimate of $750,000-$800,000 for the refurbishment of the Laurel (Tr. 56). 22, Plaintiff also testified that defendant Goldman told plaintiff she would charge him $140 per hour and said, “I'll share all of the discounts with you.” (Id.). 23. ‘There is no written engagement agreement between the parties with respect to any of defendant Goldman’s charges neither for her time, nor for the sale of any goods or materials that were to be installed on the Laurel, However, plaintiff testified that it was his understanding that he would be paying wholesale prices for goods—in other words, the same price that defendant Goldman would be paying, without any markup whatsoever (Tr. 76). 24. — Plaintiff met with defendant Goldman a third time, on or about December 18, 2013, at his “Rochester residence” in Fishers, New York. Plaintiff was unable to specify the precise date of this third meeting, but did testify that he returns to Rochester for Christmas each year, and he recalled that a third meeting occurred around Christmas time (Tr. 61). 25. Annexed hereto as Exhibit D is a listing of checks that were delivered by plaintiff to the defendants for work on the Laurel. According to Exhibit D, the first checks written on plaintiff's behalf were dated December 18, 2013 as follows: Amount of Cheek: To: $40,000 Norma Goldman $175,000 Vitoch Interiors Ltd. 26. Defendant’s work on the Laurel continued through the winter of 2013-14. 27. According to Exhibit D, plaintiff made his final payment to defendant Goldman on or about June 4, 2014 in the amount of $58,687.34. oxt6Ranp koriennn<, ur 28. Shortly thereafter, the Laurel sailed from West Palm Beach to Europe (Tr. 136-37). 29. Plaintiff admitted that after the Laurel sailed, it was chartered to third- parties, and that he received revenue for charting the Laurel (Tr. 139). 30. Moreover, prior to the time when the Laurel sailed in June of 2014—in fact, prior to the time the last check was written in early June—plaintiff had had an opportunity to view everything that had been delivered to the Laurel (Tr. 123-24). 31. Plaintiff testified that he does not dispute the accuracy of any of defendant Goldman’s time records (Tr. 114-15). 32. In addition, plaintiff testified that he does not dispute that the items for which he was billed were actually installed on or delivered to the Laurel (Tr. 119). 33. _ Rather, this lawsuit is solely about the price plaintiff was charged for those goods (Tr. 16). D. All Goods Sold to Plaintiff were Accepted. 34. With one exception, plaintiff did not reject any of the goods that were delivered to or installed on the Laurel. ‘The sole exception was some outdoor furniture that plaintiff found unsatisfactory and was returned to the vendor. Plaintiff admitted that he received a full rebate for this rejected furniture (Ir. 97-99). 35. Ato time did plaintiff give notice to any defendant that he was rejecting any of the goods that had been delivered to or installed on the Laurel; nor is there any notice by which plaintiff revoked his acceptance of such goods. HIGER ano ROTHENBERG, ue 36. The record is uncontroverted that as of June 4, 2014 plaintiff paid in full—both to defendant Goldman and to defendant Vitoch—for everything that had ‘been delivered to the Laurel. 37. Moreover, itis undisputed that plaintiff retained all of the goods sold and delivered, Clearly, none of the defendants, as sellers of any goods, retained any ownership interest in any of the goods. 38. Not only did the Laurel sail with all these goods aboard, but plaintiff chartered the yacht and received revenue from third parties, after all the goods had been sold and delivered. 39. Lastly, there is no claim in this case that any of the goods were non- conforming, The causes of action in the complaint are “simply about price” (Tr. 122). E. Acceptance of All Goods Bars Plaintiff's Claims with Respect to Price. 40. In support of their motion for summary judgment, defendants have submitted a memorandum of law, whose arguments are incorporated herewith. In sum, defendants are entitled to summary judgment for the following reasons: . Plaintiff accepted all goods sold and delivered for use on the Laurel within the meaning of UCC 2-606. * Having accepted all goods sold and delivered, plaintiff was bound to pay the contract price. UCC 2-607(1) + After accepting and paying for all goods, plaintiff’s sole remedy under Article 2 is an action for damages arising out of non- conforming goods. 41. When a contract is silent as to the precise price to be charged, UCC 2-305 allows the seller to recover its price, so long as the price is reasonable. BIaER ane RomHENHERG, 42. UCC 2-305 states that a price is “a reasonable price at the time for delivery if nothing is said as to price”. UCC 2-305(1)(a) 43. The same section provides that a price fixed by the seller is a reasonable price, so long as such price is fixed in “good faith". UCC 2-305(2) 44. The official comment g to Section 2-305 specifically states that terms such as “posted price” or “price in effect” or “market price” all satisfy the sellers good faith requirement. Wuererore, defendants respectfully request the entry of an order granting them summary judgment, dismissing plaintiff's complaint in its entirety, and granting defendants such other and further relief as to the Court seems just, proper, and equitable. Dated: January 28, 2016 Rochester, NY GnIGBR AD ROTHENBERG un STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE B, THOMAS GOLISANO, Plaintiff, vs. Index No.: 2015/10706 VITOCH INTERIORS LTD., ARTHUR VITOCH, and AFFIDAVIT NORMA GOLDMAN, Defendants. STATE OF NEW YORK: COUNTY OF MONROE: ss Norma Gorpmay, being duly sworn, deposes and says: 1 Tam a defendant in this action. I submit this affidavit in support of defendant’s motion for summary judgment dismissing plaintiff's complaint. 2. Annexed to defendants’ motion as Exhibit E is a handwritten itemization of all prices for goods that were sold to plaintiff in connection with the refurbishment of the Laurel. 3. For every item sold, two prices are listed on Exhibit E. 4. The higher price, which is listed in parenthesis, is either the manufacturer's suggested retail price, or the price that would be charged pursuant to the usual and customary markup applied by Vitoch Interiors, Ltd. for the sale of goods. 5. The lower price—the price not in parenthesis—which is found in the far right column in Exhibit f, is the discounted price that was charged to plaintiff for each item of the goods sold for the Laurel. HT0BR avo ROTHENRERG, 6. Ineach instance listed on Exhibit E, and for every single item that was sold to plaintiff in connection with the refurbishment of the Laurel, plaintiff was charged the lower price. 7. Inother words, for every item sold to the plaintiff, he was charged less than the manufacturer's suggested retail price, or less than the normal price that would have been charged by Vitoch, applying their usual and customary markup. 8. In 2007 and 2009 | did design and decorating work for plaintiff in connection with his Rochester residence located in Mendon, New York. 9. When I did work on plaintiffs residence, 1 billed him an hourly rate for my time, plus charges for all of the goods sold. ‘The pricing for the goods was based on a discount from the manufacturer's suggested retail price, or the usual and customary markup applied by Vitoch Interiors, LTD. 10. _ Myilling practice for the refurbishment of the Laurel was exactly the same as the practice that had been employed by me when I did work on plaintiffs residence on 2007 and 2009. Norma Goldngfan Sworn to befayame on the 21 day of [An -_, 2016 Exhibit A STATE OF NEW YORK SUPREME COUNTY COUNTY B. THOMAS GOLISANO, Plaintiff, Ys. VITOCH INTERIORS LTD, ARTHUR VITO! NORMA J, GOLDMAN, Defendants, Fk MONROE, Plaintiff designates Monroe County as the Place of Trial SUMMONS and Index No: LO1S- (0106 ‘The basis for venue is principal office of | Defendants a | | | | ‘To the above-mentioned Defendants: “YOU ARE HEREBY SUMMONED to a.copy of your Answer, or, if the Complaint is not Appearance on the Plaintiff's attorneys within tw exclusive of the day of service, or within thirty 3 i$ made in any other manner than by personal del} appear or Answer, Judgment will be taken again} Complaint. | | ‘Dated: September 25, 2015 | Rochester, New York ‘Vitoch Interiors LTD 59 Halstead Street Rochester, New York 14610 Arthur Vitoch 59 Halstead Street Rochester, New York 14610 pas ‘the Complaint in this action, and to serve served with this Summons, fo serve a Notice of -nty (20) days after the service of this Summons, }) days after completion of service where service very within the State, In case of your failure to st you by default for the relief demanded in the in E. Pezzulo, Esq. s LEY, MARKS, TANENBAUM & PRZZULO LEP -neys for Plaintiff B. Thomas Golisanio ‘est Main Street, Suite 500 hester, New York 14614 +) 546-7830 ‘Norma J. Goldman. ‘724 Lake Road ‘Webster, NY 14580 STATE OF NEW YORK SUPREME COUNTY | COUNTY B. THOMAS GOLISANO, | Plaintiff, -s- NORMA J, GOLDMAN, VITOCH INTERIORS Lm} ARTHUR VITOCH and | Defendants, | Plaintiff, B. Thomas 1 isan, by and th Pezaulo, LLP, as and for his complaint against De! oa ‘of New York, | 2, Defendant Vitoch Interiors LTD, and existing under the laws - State of New Yt Hf MONROE COMPLAINT ugh his attorneys, Culley Marks Tanenbaum & fendants, alleges as follows: 9 | yo Atall relevant ie Plaintiff main{ains a residence in the County of Monren, State s a domestic business corporatiot’ organized rk, County of Monroe with a place of business (0. 3, Defendant Arthur Vitoch is a resident of the County of Montoe, State of New at 59 Halstead Street, Rochester, New York 1461) ‘York, 4, The Defendant Norma J. Goldman} ‘New York is a resident of the County of Montoe, State of ON AGAINST DERENDANTS | BREACH OF CONTRACT. 5. Plaintiff repeats and realleges Paragraphs 1 through 4 as if set forth fully herein. Index No: 2015-10106 A 6 On or about November 7, 2013 through December 18, 2013, Plaintiff hired the Defendants to refurbish Plaintiff's luxury MY Laurel, 1, included: 10. at the rate of $140fper hour, ne Plaintiff hired Defendants, among other things, to prepare a design scheme which Color schemes for new furniture; Interior design, including color schemes; ‘Wall coverings; Floor coverings; Lighting treatents; ‘Window treatnnents ‘Also, Plaintiffjhired Defendants to: Gane Re-uphoister certain existing furniture; ‘Refurbish buill-ins and wall panels, including built-in benches. Also, Plaintiffhired Defendants to provide new: We Carpeting: am Draperies; Lighting fixtuges; Paintings; Fumiture; Bed linens, Defendants promised Plaintiff the only fees for services provided would be charged ~ \ > Defendants ppmised Plains, regarding the metals or goods provided that") Plaintiff’ would be charged Defendants’ wholesale cost or Defendants’ preferred price for all goods and materials thereby implying a substantial savings to the Plaintiff. 12, amount of $33,800.00, | Plaintiff pid the Defendants the total amiountcharged forhourly compensationin the ~ | 5 13. Plaintiéf paid 12/18/2013 12/18/2013 02/10/2014 02/10/2014 i 03/26/2014 03/26/2014 06/04/2014 he Defendants the following sums of money for goods and services: forma Goldman $ 40,000.00 itoch Interiors 17,000.00 lorma Goldman 240,000.00 toch Interiors 100,000.00 ‘toch Interiors 75,000.00 lorma Goldman 156,000.00 lorma Goldman, Total Paid 14, As of the result of the above, Plaintiff the Defendants, $811,067.34 for goods and materials, which sum amount: wholesale or preferred price for materials, els Plaintiff has de 16. laintiff has ada Tee 16, Defendants bay, | | overcharges referenced above, but also based upon its deviation from an acceptable standard of care | in performance as design professionals, 17. Plaintiff has b toa 100% mark-up in violation of the Defendants’ promise to charge Y dwt } « manded the return of $400,000.00 (See Exhibit wf eaasetseee 2¢ Bee med al] of his terms and conditions ofthe contrac, Ada EEE ie breached its contract with the Plaintiff, not only with respect to the damaged in the sum of $400,000.00, -S-> | SECOND CAUSE OF ACTION AGAINST DEFENDANTS: 17. Plaintiff repeat | 18. Plaintiff perfor contract, “SAME ao | 19. Imexchange for ‘breach of the contract, Defendants owe Plaintiff the sum of $400,000.00. UNJUST ENRICHME and realleges Paragraphs 1 through 16 as if sct-forth fully herein, yned of his obligations pursuant to the terms and conditions of the \ oh y Wo i Plaintiff's fulfillment of his obligations and duties, and Defendants’ D> 3 58,867.34. peg $844,867.34 v le me) p mL rN a 20. Asaresult of owing to him, Plaintiff is entitled to judgment in the amount of $400,000.00 plus interest. efendant’s failure and refuusal to pay Plaintiff the amounts due and py WHEREFORE, Plaintiff B. Thomas Golisano demands judgment against Defendants Vitoch Interiors LTD, Arth 1 Vitoch and Norma J. Goldman as follows: 1. On the First Cause of Action in the amount of $400,000.00, plus interest; 2. On the Secon¢ 3. Such other ant Dated: September 25, 2015 Rochester, New York! | Cause of Action in the amount of $400,000.00, plus interest; further costs as this|Court deems just and proper. Glenn E. Pezzulo, Esq, Calley Marks Tanenbaum & Pezzulo, LLP Attorney for Plaintiff 36 W. Main Street, Suite 500 Rochester, NY. 14614-1790 (585) $46-7830 Exhibit B oEtGHRaxo ROTHENDERG, tr STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE B. THOMAS GOLISANO, Plaintiff, NS. 2015/10706 VITOCH INTERIORS LTD., ARTHUR VITOCH, AND NORMA GOLDMAN, Defendants. ANSWER AND COUNTERCLAIMS Defendants, for their answer to plaintiff's complaint, allege upon information and Delief as follows: 1. Admit the allegations in paragraphs 2, 3, and 4 of plaintiffs complaint. 2. Deny the allegations in paragraphs 6, 10, 11, 12, 14, 19, and 20 of plaintiff's complaint. 3. Deny knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph 1 of plaintiff's complaint. 4. Inresponse to the allegations in paragraphs 7-9 of plaintiff's complaint, defendants admit that defendant Norma J. Goldman (“Goldman”) was engaged by plaintiff to perform the services alleged and to provide the goods alleged, and deny the remaining allegations in paragraphs 7-9 of the complaint. ROTHENHERG, se In response to the allegations in paragraph 13 of plaintiff's complaint, defendants admit that plaintiff paid the alleged sums on the alleged dates, but state that a portion of the sums alleged was refunded by defendant Goldman to the plaintiff. 6. Inresponse to the allegations in paragraph 15 of plaintiff's complaint, defendants admit that plaintiff has demanded payment of $400,000.00, and deny that plaintiffs is entitled to any further refund of any payment, nor to recover anything from the defendants, 7 Inresponse to the allegations in the first paragraph numbered 16 in plaintiff's complaint, defendants admit that plaintiff paid sums requested by defendants, and deny the remaining allegations in the first paragraph numbered 16. 8 Defendants deny the allegations contained in the second paragraph numbered 16 in plaintiff's complaint. 9. Defendants deny the allegations contained in the first paragraph numbered 17 in plaintiffs complaint. 10. In response to the allegations in paragraph 18 of plaintiff's complaint, defendants admit that plaintiff paid sums requested by defendant, and deny the remaining allegations in paragraph 18, 11, Defendants repeat and reallege their responses to paragraphs § and the ond paragraph numbered 17 in plaintiff's complaint as though fully set forth her 12, Defendants deny each and every remaining allegation in plaintiff's complaint to which defendant has not specifically responded above. FIRST AFFIRMATIVE DEFENSE 13. Plaintiff's complaint fails to state a cause of action against the defendants. SECOND AFFIRMATIVE DEFENSE 14. Plaintiff's eauses of action are barred by the doctrine of waiver. THIRD AFFIRMATIVE DEFENSE 15. Plaintiff's causes of action are barred by the doctrine of estoppel. FOURTH AFFIRMATIVE DEFENSE 16. Plaintiff's causes of action are barred by the doctrine of accord and satisfaction. FIFTH AFFIRMATIVE DEFENSE 17. Inor about the spring of 2014, and before the yacht had sailed following its redesign and refurbishment, plaintiff's agents reviewed and inspected all work that had been performed by or on behalf of defendants, and all goods that had been supplied for installation or use on the yacht. 18. Atorabout that time, plaintiffs agents, acting within the scope of their authority, accepted all goods that had been sold to the plaintiff. 19. By reason of having accepted all goods delivered to the yacht, which goods were inspected by plaintiff's agents, plaintiff's causes of action are barred by Article 2 of ‘the Uniform Commercial Code. SIXTH AFFIRMATIVE DEFENSE 20. After plaintiff's agents had inspected all goods installed on or delivered to the yacht, and prior to the date on which the yacht sailed from its mooring at West Palm Beach, Florida, plaintiff failed to reject any of the goods which had been delivered. Geren Rorueenena, ue 21, After plaintiff's agents had inspected all goods installed on or delivered to the yacht, and prior to the date on which the yacht sailed from its mooring at West Palm Beach, Florida, plaintiff did not revoke acceptance of the goods that had been installed on or delivered to the yacht. 22, By reason of the foregoing, plaintiff's causes of action are bi sd by Article 2 of the Uniform Commercial Code. SEVENTH AFFIRMATIVE DEFENSE, 23. _ Following the inspection of all goods that had been installed on or delivered. tothe yacht, which inspection was conducted by plaintiff's agents, plaintiff took actions inconsistent with any defendant's ownership of the goods. 24. More particularly, at various times between the summer of 2014 and January of 2015, plaintiff sailed the yacht for his own personal use and enjoyment, or leased the yacht to third parties, 25. By reason of the foregoing, plaintiff accepted all goods pursuant to Section 2-606 of the Uniform Commercial Code. 26. By reason of the foregoing, plaintifi’s cau: of action are barred by Article 2 of the Uniform Commercial Code. HICER AK ROTHENIERG, we FIRST COUNTERCLAIM 27. Defendant Norma Goldman (“Goldman”) is a resident of the State of New York, County of Monroe, 28. Upon information and belief, plaintiff maintains a residence in the State of New York, County of Monroe. 29. Between the fall of 2013 and May of 2014, defendant Goldman provided services to the plaintiff for the redesign and refurbishment of his luxury yacht, the MY Laurel (“the yacht”), 30. In addition, and during the same time period, defendant sold various goods to the plaintiff for installation and/or use on the yacht. 31. Between the fall of 2013 and in or about June of 2014, plaintiff paid all bills which had been rendered by defendants, 32. Upon information and belief, between the summer of 2014 and January of, 2015, plaintiff leased the yacht to third parties for various periods of time. 33. In July 2014, after defendant Goldman's work had concluded and after the yacht had sailed from West Palm Beach, Florida to the Mediterranean, plaintiff and defendant Goldman met. 34. During the July 2014 meeting, plaintiff raised certain concerns regarding the fit and finish of some goods that had been installed on the yacht, even though plaintiff had already accepted such goods and had already approved all work that had been performed. 35. During their July 2014 meeting, plaintiff represented to defendant Goldman that he would forego litigation against her and/or others, provided that she remedied all of his concerns regarding the fit and finish of goods. GxIcER as 36. Inreturn for plaintif’s representation not to sue, defendant Goldman agreed that she would address fit and finish concerns, at no cost to the plaintiff, when the yacht returned to Florida, 37. Inorabout January of 2015, after the yacht had returned to its mooring in West Palm Beach, Florida, defendant Goldman met with plaintiff's agents, at which time plaintif’s agents raised additional concerns regarding the condition of various goods that had been installed on the yacht. 38. Defendant Goldman observed that many of these additional concerns related to normal wear and tear, as a result of the yacht having been leased during the previous year. 39. Plaintiff and defendant Goldman had entered into an oral agreement, pursuant to which defendant Goldman had agreed to replace or repair those goods about which plaintiff had raised complaints, without any charge for either goods or services and in return, plaintiff would not commence litigation against her or any of the other defendants. 40. — Inreliance upon this oral agreement, defendant Goldman, at her own expense, replaced or repaired numerous goods on the yacht which had been damaged as a result of normal wear and tear, and performed numerous services on plaintiff's behalf, in order to comply with plaintiff's demands. 41, Inthat regard, defendant Goldman spent $7,216.37 for replacement or repair of goods which were installed on the yacht at no cost to the plaintiff. 42. In addition, defendant Goldman expended 69.5 hours of her time in connection with addressing plaintiff's complaints and replacing those goods about which plaintiff or his agents had complained, without charging plaintiff for her services. ox1cER ax ROTHENRERG, we 43. The fair and reasonable value of services provided by defendant Goldman to the plaintiff for this additional work performed pursuant to the parties’ oral agreement was $10,425.00. 44. Plaintiff and defendant Goldman entered into an oral agreement, under which defendant Goldman repaired various goods or provided additional goods and services to the plaintiff, at no charge, in reliance upon plaintiff's promise not to commence litigation, 45. Defendant Goldman gave plaintiff valuable consideration, 46. Plaintiff breached his oral agreement with defendant Goldman by commencing the instant lawsuit. 47. Defendant Goldman has been damaged in the amount of $17,641.37. 48. By reason of the foregoing, plaintiff is liable to defendant Goldman for breach of contract in the amount of $17,641.37, plus interest from the date of breach. SECOND COU} CLAIM 49. Defendants repeat and reallege each and every allegation contained in paragraphs 27 through 48 above, as though fully set forth herein, 50. — Plaintiff made a clear and unambiguous promise to defendant Goldman ‘that he would not commence litigation against her and others, provided that she replaced or repaired various goods on the yacht at no additional cost to the plaintiff. lefendant 51. Inreliance upon plaintiffs clear and unambiguous promi Goldman gave plaintiff goods and services with a value of $17,641.37, at no charge. 52. By commencing the instant litigation, plaintiff has caused injury to defendant Goldman. 53. By reason of the foregoing, plaintiffis liable to defendant Goldman for promissory estoppel in the amount of $17,641.37, plus interest. ‘THIRD COUNTERCLAIM 54. Defendants repeat and reallege each and every allegation contained in paragraphs 27 through 53 above, as though fully set forth herein. 55. Defendant Goldman gave plaintiff goods and provided plaintiff with services for which plaintiff has not paid. 56. By reason of the foregoing, plaintiff is liable to defendant Goldman in quantum meruit in the amount of $17,641.37, plus interest. ontGBRaND RoTENBERG, RoTHEHERG, 08 WHEREFORE, defendants demand judgment against the plaintiff as follows: Dismissing plaintiff's complaint as against all defendants; Awarding judgment against plaintiff, and in favor of defendant Norma Goldman, in the amount of $17,641.37, plus interest from the date of breach; and Awarding defendants the costs and disbursements of this action. Dated:November 3, 2015 To: Rochester, NY J David Kothonborg David Rothenberg, Esq. GEIGER and ROTHENBERG, LLP Attorneys for Defendants 45 Exchange Street, Suite 800 Rochester, New York 14614. Tel: (585) 232-1946 Fax: (585) 232-4746 Email:drothenberg@geigroth.com Glenn E. Pezzulo, Esq. CULLY MARKS TANENBAUM & PEZZULO LLP Attorney for Plaintiff 36 West Main Street, Suite 500 Rochester, New York 14614 Exhibit C 15 16 a 18 19 20 21 2 23 24 25 STATE OF NEW YORK COUNTY OF MONROE : SUPREMECOURT ee x | B. THOMAS GOLISANO, | Praisit, Inde No 2015110706 \VITOCH INTERIORS, LTD,, ARTHUR VITOCH and NORMA J. GOLDMAN, Defendant x| Examination before tral of. THOMAS GOLISANO| taken pursuant to notice in tefaw offices of Calley Marks Tanenbaum & fezzul, LLP, 36 West Mai Steet, Rochester, New York go Weehesdy, December 23,2015, commencing at 9:27 am, i} Reported by: COMPUTER REPORTING SERVICE | Macgaet R, Crane 16 East Main Steet, Suite 7 Rochester, New York 14614 (585) 325-3170 APPEARANCES: Rochester, New York va GEIGER and! ROTHENBERG, LLP By: DAVID ROTHENBERG, Esq 45 Exchange Stree, Suite §00 Rochester, New York 146} Altouney for Defendants 3 1 2 INDEX 3B, Thomas Golisano 4 Examination by Mr, Rothenberg 5-169, 5 6 Reporter Cetificate 170 2 Witness Certificate m 8 Bata Sheet nm 9 10 REQUESTED MATERIAL 11 ~seareh personal eafendar for entries re: meetings 12 with defendants B 13 -visitor list, 5 14 15 EXHIBITS 16 No.1-complai 3 17 No.2-photos of Laurel 36 18 No.3 - carpeting estimate 3° 19 No.4-list ofchecks 39 20 No.5 - Estimate for Mr, Tom Golisano, the Laurel 59 21 Ne. SA-- handwritten letter from N. Goldman to T. 22 Golisano with atached estimate 9 23 No.6-T. Golisano's bank account, June 2014 108, 24 No.7 itemized bill for services rendered 113 25 No.8-summary of N. Goldman's billing 117 No. 9 summary of Vitoch’s billing 120 ‘No, 10 two pages of photos 139 No. 11 fist of rooms 143 No, 12-leter from N. Goldman to T. Golisano 147 No. 124 - walkthrough notes 157 9 10 u 12 13 14 15, 16 uv 18 19 20 2a 22 23 24 25, (585) COMPUTER REPORTING SERVICE 25-3170 2 25 Oe eee | tis heey ple and betwen te | are oe reaps pain rein che filing of the transcript be waived; that any dn all abjetons excop aso em oRequesonbe | reson nl eine of i | Wiser spt ht heouthand presence of the Referee be waived, and that Margaret) R. Crane, Notary Public, njay swear in the witness. || B. THOMAS GOLISANO- | cal hci as ais edly 0m, | testified as follows: | [EXAMINATION BY MR. ROTHENBERG: i| (Cola, gn’ nmin. an avid oo | Have you ever been dey | | : @ Solin gongs0 go orsrome pounds. | ase yt ho bt f oul st Hog Oe i fendants inthis ease 8 belore? thom quickly with you First rule is that you hav to voealize your answer so that Ms, Crane can take if down. A, Got it @ Second one is, and I fan sense already that ‘we're going to have an issuelwith this ane, but you | to dois wat for me to 8. Gotsao = Examination by Me, Rotenberg edt wat for Fish oy gueston ven ya row excl wh mn going ask | ‘A. Why do yo think wee gong to have a probley with that one? Q. Becase Ive ben intefted wie ahead). A. By who? | By you si | A Oh, | Q And so hat need yo Fish and, incu il wat or you finish your A. Okay, @ Understood? } A. Absolutely. | (. Saif happen ~ iFyoufpause and happen to interrupt your answer, you nef otell me right away and It stop andl et you ifs A. Okay, Now if you ase mea Fotish question ean L say s0? Youcan sey A, Is that one ofthe rules? You can sy wiatever ‘oblige to answer the questi AL All eight, x peas, bu youre | inany event | \ | 7 BT, Golisano - Examination by Mr, Roth Q, The third ground rule is that ifyou doott understand my question, | want you fo tell me that because iF you answer my question fm going to assume that you have understood it. 1s that understood? A. Fair enoug @ And Intly, iFyou need a break, you just need to ell us and well take a break at any time you wish Okay, Were you born and raised in Westem New York? A, Rochester. Q. Okay, And where did you attend high school? A. drondequoit. Tell me alittle bit about your post high schoo! education, [My post high schoo! education Yeah, Did you goto college? \- Alfred State Tech, two years = And graduate Associate's Degree eraduated ~ a. Okay, Were not following the rules and heres the problem, I's very difficult forthe Steno to take the testimony if were talking over cach oer, wher erererer a B,, Golisana - Examination by Mr, Rothenberg 0 need you to be more patient Okay? ‘Were going to cover alot of ground today, but ‘ed you to wait forme to finish my questions. ‘A. Can J consult with my attorney before I answer the question? Well, you'e supposed to answer the question ‘when ison the cable, but Fm not going tell you and your lawyer what you guys ae gong to do today. ‘The two of you are going to Figure thal out, My understanding ofthe rule fs that when the ‘question i on the table you're supposed to answer it ‘and then you consult aferwards, but if Me. Pezzlo feel differently, hell advise you that much Soback up. Pm sorry. You got out of Alfed Tech what year? A. 1962, @ And ld you attend any educational instutions, matieuating ater that date? No. ‘Are you presently married sf? Yes, ‘And hat isthe name of your wife? \- Monica. Q A Q. A (585) COMPUTER REPORTING SERVICE 325-3170 u 2 a3 ul as 16 1 ry 20 2 22 23 2a 25 nu 12 13 u 15 16 7 18 19 20 a 22 23 24 25 B.T. Gatisano - Examina And what vas the date [A September 28th, 2014 font want to spend all wen did he business begin ty Paychex? |A. What is the relevancy Well, dost need toa but A. Vd tke to ane i Okay, Fairenough, Tanto just explore very 1 sophisticated businessman, ask you todo isto tll me, fist business tht became Paychex A. Novernber 1970, And just tll me, you ke your mariage? ay on his, but 3 eventually became al this? re that question, ely that youre what Io keto oral, when aid the rignat? 2 in one paragraph tbo Paychex from is origin tb when it became a puble company. |A. Its origin to when want? (Asch as you want lot, I sid one paragraph. Te wont to ell me 'A. Company started in 5.7. Gotsano ~ Exam Now York. Overa periad of branches in various cities 90 The inital product was ‘nad approximately 80 shar shareholder. ‘We went public in Aug Hambrecht & Quis id the publi company. And from origin wi hold an ofc with be compa A. CEO. Q. And ater the company} rain the CHO te? A, Uawi2004, Sothen ou wer the approximately 30 years i ‘A. Uh, . You neo vocalz. A. Yessy @. Andsince you stepped tld any other otis wah Pa A. Vim il ebairnanof| @. Okay. Do you today irons oF ay therfore 1 mich detail do you tellime, I dont need Le whatever you ons the country. holders, 1 was the maj of 1983, EP. Hutto nr went public did you hy? focame publi id you 0 of Paychex for fown as CEO have you hex? he board, rve onthe boar of fi corporations? {PO and today we're still 4 by Mr, Rothenbers vember 1970 in Rochester, 10 tion by Me, Rothenberg "T2or 13 years we opened nyrall processing and we a BT Golisano - Examination by Mr. Rothenberg AA, Public or private? Q Bither one. A, Yes. Q. How many public corporations? A. Zero. {Q. How many private corporations? A, About seven or eight. And are they all engaged in some for-profit business setivity? A. Ves. So would it be fairto say, Mr. Goisano, that ‘you consider yourself a sophisticated businessman? A, Not realy. & Why not? ‘A. Mow do you define that term? Q Wall, the courts have defined that term, ‘Tell ime why you don't think you'e sophisticated, [A, Tell my how the court defines itand then 11 (Q. You served as the CEO of company that grew from origin into public eompany in about a decade, comect? A. Yes, And so would it be fair to say that you 12 .T, Golisano - Examination by Mr Rothenberg shepherded that growth from origin until the time the company became public? ‘A. The company grew duing that period, yes. Q. And then you served asthe CBO ofa public company for mare than to decades, corect? ‘A. Correct. Q. And how many employees did Paychex have proximately atthe time that you stepped down as CRO? ‘A. About 9,000, @. Soin your mind can you give me an idea oF somebody ater than yoursel who might bea sophisticated businessinan? ‘A. doe Wilson, Q. More sophisticated then you, sie? A. He's the CEO of Xerox, sure, Q. Frm not going to quart! with you about but as CRO of Paychex were you involved in the negotiations for business ransactions? ‘A. That's pretty broad question. Ql uverstand that A. Lguess [ould have to say yes. . And were you ether involved diretly or indecly inthe negotiation = for example, when the