FILED: ONONDAGA COUNTY CLERK 03/07/2019 12:32 PM
`FILED: ONONDAGA COUNTY CLERK 03M2019 12:32 P
`
`NYSCEF DOC. NO. 31
`NYSCEF DOC. NO. 31
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`
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`INDEX NO. 2015EF3764
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`INDEX \TO- 20153F3764
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`
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`R«C«IV«D NYSCEF: 03/07/2019
`RECEIVED NYSCEF: 03/07/2019
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`SUPREME COURT
`
`COUNTY OF ONONDAGA
`STATE OF NEW YORK
`
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`AMERICAN EXPRESS BANK, FSB
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`Plaintiff,
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`._
`.
`.
`I“: no 53 '3 21%
`INDEX No.2 2015EF3764
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`0
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`vs.
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`ORDER
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`JAMES TOSCANO and
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`PERFECTLY PICKLED PRODUCTS, LLC
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`d/ba’a PER PICKLED PROD, LLC
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`Defendant(s).
`
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`Plaintiff has moved this Court pursuant to CPLR § 3212 for an order granting summary judgment in
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`favor of the Plaintiff and against the Defendants in action arising out of the breach of a credit agreement. In
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`support of the motion, the Plaintiff has submitted the Notice of Motion dated August 10, 2018, the
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`Afiirmation of Virginia Grapensteter, Esq. dated August 10, 2018, and the Affidavit of Vivian Hinds dated
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`July 13, 2013 with Exhibits annexed thereto. The Defendants submitted written Opposition to the Plaintiff’s
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`motion to which the Plaintiff submitted a written Reply
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`Both the Plaintiff and Defendant having appeared before me on December 12, 2018 and upon
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`hearing Patrick Haber, Esq. on behalf of the Plaintiff and the Kevin O’Connell on behalf of the Defendants,
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`and due deliberation having been had; it is hereby
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`ORDERED, that the Plaintiff‘s motion for summary judgment pursuant to CPLR § 3212 is decided
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`as follows:
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`1) Plaintiff’s motion for summary judgment against the Defendant James Toscano is denied; and
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`2) Plaintiff’s motion for summary judgment against the Defendant Perfectly Pickled Products,
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`LLC dfbi’a Per Pickled Prod, LLC is granted and that the Plaintiff shall recover the sum of
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`$17,089.24 plus costs and disbursements.
`
` DATED:
`
`y J,
`
`aris, J.S.C
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`%/$/( l9
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`
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`lof6
`1 of 6
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`FILED: ONONDAGA COUNTY CLERK 03M2019 12:32 P
`
`NYSCEF DOC. NO. 31
`NYSCEF DOC. NO. 31
`
`
`
`INDEX NO. 2015EF3764
`
`INDEX \TO- 20153F3764
`
`
`
`R«C«IV«D NYSCEF: 03/07/2019
`RECEIVED NYSCEF: 03/07/2019
`
`SUPREME COURT
`
`COUNTY OF ONONDAGA
`STATE OF NEW YORK
`
`
`AMERICAN EXPRESS BANK, FSB
`
`Plaintiff,
`
`._
`.
`.
`I“: no 53 '3 21%
`INDEX No.2 2015EF3764
`
`0
`
`vs.
`
`ORDER
`
`JAMES TOSCANO and
`
`PERFECTLY PICKLED PRODUCTS, LLC
`
`d/ba’a PER PICKLED PROD, LLC
`
`Defendant(s).
`
`
`Plaintiff has moved this Court pursuant to CPLR § 3212 for an order granting summary judgment in
`
`favor of the Plaintiff and against the Defendants in action arising out of the breach of a credit agreement. In
`
`support of the motion, the Plaintiff has submitted the Notice of Motion dated August 10, 2018, the
`
`Afiirmation of Virginia Grapensteter, Esq. dated August 10, 2018, and the Affidavit of Vivian Hinds dated
`
`July 13, 2013 with Exhibits annexed thereto. The Defendants submitted written Opposition to the Plaintiff’s
`
`motion to which the Plaintiff submitted a written Reply
`
`Both the Plaintiff and Defendant having appeared before me on December 12, 2018 and upon
`
`hearing Patrick Haber, Esq. on behalf of the Plaintiff and the Kevin O’Connell on behalf of the Defendants,
`
`and due deliberation having been had; it is hereby
`
`ORDERED, that the Plaintiff‘s motion for summary judgment pursuant to CPLR § 3212 is decided
`
`as follows:
`
`1) Plaintiff’s motion for summary judgment against the Defendant James Toscano is denied; and
`
`2) Plaintiff’s motion for summary judgment against the Defendant Perfectly Pickled Products,
`
`LLC dfbi’a Per Pickled Prod, LLC is granted and that the Plaintiff shall recover the sum of
`
`$17,089.24 plus costs and disbursements.
`
` DATED:
`
`y J,
`
`aris, J.S.C
`
`%/$/( l9
`
`
`
`lof6
`1 of 6
`
`
`
`FILED: ONONDAGA COUNTY CLERK 03/07/2019 12:32 PM
`FILED: ONONDAGA COUNTY CLERK 03M2019 12:32 P
`
`NYSCEF DOC. NO. 31
`NYSCEF DOC. NO. 31
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`
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`INDEX NO. 2015EF3764
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`INDEX \TO- 20153F3764
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`R«C«IV«D NYSCEF: 03/07/2019
`RECEIVED NYSCEF: 03/07/2019
`1
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`1
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`STATE OF NEW YORK
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`2
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`SUPREME COURT
`:
`COUNTY OF ONONDAGA
`____________________________________________________________
`
`AMERICAN EXPRESS BANK, FSB,
`
`- against -
`
`Plaintiff,
`
`JAMES TOSCANO AND PERFECTLY PICKLED PRODUCTS, LLC, D/E/A PER
`PICKLED PROD, LLC,
`
`Defendant.
`
`INDEX #2015EF3764
`RJI #33-18—2780
`
`Motions
`
`December 12, 2018
`
`Onondaga County Courthouse
`401 Montgomery Street
`Syracuse, NY 13202
`
`BEFORE:
`
`APPEARANCES:
`
`HONORABLE ANTHONY J. PARIS,
`SUPREME COURT JUSTICE
`
`Zwicker & Associates
`
`100 Corporate Woods, Suite 230
`Rochester, New York 14623
`BY: PATRICK HABER, ESQ., Local Counsel
`
`O'Connell Law Firm
`3269 Fulton Ave
`PO BOX 567
`
`Central Square, New York 13036
`BY:
`KEVIN O'CONNELL, ESQ.
`
`
`JAMIE L. PACHECO, RMR, SENIOR COURT REPORTER
`
`2 of 6
`2 of 6
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`FILED: ONONDAGA COUNTY CLERK 03/07/2019 12:32 PM
`FILED: ONONDAGA COUNTY CLERK 03m2019 12:32 P
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`3F DOC. NO. 31
`NYSCEF DOC. NO. 31
`Nysc
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`20153F3764
`INDEX NO. 2015EF3764
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`INDEX \10'
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`RsCsIVsD NYSCEF:
`03/07/2019
`RECEIVED NYSCEF: 03/07/2019
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`American Express v. Toscano, et a;
`2
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`10
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`ll
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`THE CLERK: American Express versus Toscano, et
`
`al.
`
`MR. HABER: Patrick Haber appearing as local
`
`counsel for Zwicker and Associates on behalf of
`
`American Express.
`
`MR. O'CONNELL: Kevin O'Connell appearing on
`
`behalf of defendants Perfectly Pickled Products and
`
`James Toscano.
`
`THE COURT: Counsel want
`
`to be heard?
`
`MR. HABER:
`
`Judge,
`
`I would rely on the papers
`
`submitted, unless the Court has any questions.
`
`THE COURT: Counsel?
`
`MR. O'CONNELL:
`
`Judge,
`
`I just reiterate the
`
`fact that there is clearly a genuine issue of
`
`material fact relative to whether or not Mr. Toscano
`
`authorized any member of the corporation or company,
`
`which he was involved at the time,
`
`to secure a credit
`
`card in his name, or whether or not he himself
`
`applied for the credit card.
`
`THE COURT: Before I render this decision, what
`
`
`is Perfectly Pickled?
`
`MR. O'CONNELL:
`
`They sell pickled eggs, pickled
`
`beets.
`
`THE COURT: Plaintiff has moved for summary
`
`judgment against defendant Toscano and corporate
`
`JAMIE L. PACHECO, RMR, SENIOR COURT REPORTER
`
`3 of 6
`3 of 6
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`FILED: ONONDAGA COUNTY CLERK 03/07/2019 12:32 PM
`FILED: ONONDAGA COUNTY CLERK 03m2019 12:32 P
`
`NYSC3F DOC. NO.
`31
`NYSCEF DOC. NO. 31
`
`
`
`20153F3764
`INDEX NO. 2015EF3764
`
`INDEX “0'
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`
`
`RfiCfiIVfiD NYSCEF:
`03/07/2019
`RECEIVED NYSCEF: 03/07/2019
`American Express v. Toscano, et al
`3
`
`
`
`defendant Perfectly Pickled. Defendants have opposed
`
`this motion. While plaintiff has come forth with
`
`evidence in admissible form to show that the
`
`corporate defendant entered into a credit card
`
`agreement with plaintiff,
`
`there is no evidence that
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`defendant Toscano was a party to same.
`
`The address
`
`on the account is not defendant's home address but
`
`rather that of one Michael Trudell, who maybe the
`
`corporate officer who bound the corporate defendant
`
`but not defendant Toscano.
`
`Also, plaintiff does not present any signatory
`
`evidence or any contractual agreement executed by
`
`defendant Toscano or any evidence that he signed for
`
`any charges made in his name.
`
`Therefore, plaintiff is granted partial summary
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`judgment against the corporation but not against the
`
`individual defendant James Toscano.
`
`It is noted that
`
`in his opposition to this motion, counsel for
`
`defendant Toscano requested that the complaint be
`
`dismissed, but that relief cannot be granted, as no
`
`cross-motion was filed.
`
`Mr. Haber, will you prepare the order, send it
`
`to Mr. O'Connell for his approval. And if you are
`
`going to proceed, we need a scheduling order. Okay.
`
`MR. HABER:
`
`Thank you, Judge.
`
`JAMIE L. PACHECO, RMR, SENIOR COURT REPORTER
`
`4 of 6
`4 of 6
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`FILED: ONONDAGA COUNTY CLERK 03/07/2019 12:32 PM
`FILED: ONONDAGA COUNTY CLERK 03M2019 12:32 P
`
`NYSCEF DOC. NO. 31
`NYSCEF DOC. NO. 31
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`
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`INDEX NO. 2015EF3764
`INDEX “0- 20153F3764
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`R«C«IV«D NYSCEF: 03/07/2019
`RECEIVED NYSCEF: 03/07/2019
`
`American Express v. Toscano, et a1
`
`4
`
`1
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`2
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`THE COURT:
`
`Thank you very much.
`
`‘k
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`‘k
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`JAMIE L. PACHECO, RMR, SENIOR COURT REPORTER
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`5 of 6
`5 of 6
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`FILED: ONONDAGA COUNTY CLERK 03/07/2019 12:32 PM
`FILED: ONONDAGA COUNTY CLERK 03M2019 12:32 P
`
`NYSCEF DOC. NO. 31
`NYSCEF DOC. NO. 31
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`
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`INDEX NO. 2015EF3764
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`INDEX \TO- 20153F3764
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`R«C«IV«D NYSCEF: 03/07/2019
`RECEIVED NYSCEF: 03/07/2019
`0
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`CERTIFICATE:
`
`I do hereby certify that I am a Senior Court
`
`Reporter with the Fifth Judicial District; that I attended
`
`and reported the above—entitled proceeding;
`
`that I have
`
`compared the foregoing with my original minutes and that it
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`is a true and accurate transcript thereof and of all the
`
`?
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`proceedings had therein.
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`JAMIE L. PACHECO, RMR, SENIOR COURT REPORTER
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