GEIGER AND
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Trial Lawyers

 

 

STATE OF NEW YORK
COUNTY OF MONROE

SUPREME COURT

 

B. THOMAS GOLISANO,
Plaintiff,

vs. Index No.: 2015/10706

VITOCH INTERIORS LTD.,
ARTHUR VITOCH, AND
NORMA GOLDMAN,

Defendants.

 

ANSWER AND COUNTERCLAIMS

Defendants, for their answer to plaintist complaint, allege upon information and

belief as follows:

1. Admit the allegations in paragraphs 2, 3, and 4 of plaintiff complaint.

2. Deny the allegations in paragraphs plaintist
complaint.
3. Deny knowledge and information suf?cient to form a belief as to the truth

of the allegations in paragraph 1 of plaintist complaint.

4. In response to the allegations in paragraphs 7-9 of plaintist 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.

 

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5. In response to the allegations in paragraph 13 of plaintist 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. In response 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. In response to the allegations in the ?rst paragraph numbered 16 in
plaintist 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 complaint.

9. Defendants deny the allegations contained in the ?rst paragraph numbered
17 in plaintiff 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 5 and the
second paragraph numbered 17 in plaintiff complaint as though fully set forth herein.

12. Defendants deny each and every remaining allegation in plaintiff?s

complaint to which defendant has not specifically responded above.

 

 

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FIRST AFFIRMATIVE DEFENSE
13. Plaintiff complaint fails to state a cause of action against the defendants.
SECOND AF FIRMATIVE DEFENSE
14. Plaintiff?s causes of action are barred by the doctrine of waiver.
THIRD AF FIRMATIVE DEFENSE
15. Plaintiffs 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 AF FIRMATIVE DEFENSE

17. In or about the spring of 2014, and before the yacht had sailed following its
redesign and refurbishment, plaintiff 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. At or about 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 agents, plaintiff 5 causes of action are barred by Article 2 of
the Uniform Commercial Code.

SIXTH AF FIRMATIVE 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.

 

21. After plaintiffs 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 3 causes of action are barred by Article 2
of the Uniform Commercial Code.

SEVENTH AF IRMATIVE DEFENSE

23. Following the inspection of all goods that had been installed on or delivered
to the yacht, which inspection was conducted by plaintiff 8 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, plaintiffs causes of action are barred by Article 2

of the Uniform Commercial Code.

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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 hills
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 20 14 meeting, plaintiff raised certain concerns regarding
the ?t and ?nish 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.

352?

During their July 20 14 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.

 

 

 

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36. In return for plaintist 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. In or about 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
plaintiff?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. In reliance 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 plaintiffs behalf, in
order to comply with plaintiff?s demands.

41. In that 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 plaintiffs complaints and replacing those goods about which

plaintiff or his agents had complained, without charging plaintiff for her services.

 

 

 

 

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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 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 COUNTERCLAIM

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.

51. In reliance upon plaintiff clear and unambiguous promise, defendant
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.

 

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53. By reason of the foregoing, plaintiff is 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.

 

WHEREFORE, defendants demand judgment against the plaintiff as follows:

A. Dismissing plaintiff complaint as against all defendants;

B. 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

C. Awarding defendants the costs and disbursements of this action.

Dated:November 3, 2015
Rochester, NY

4/ Dam/'01 ?at/Lender?

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

 

To: Glenn E. Pezzulo, Esq.
CULLY MARKS TAN ENBAUM PEZZULO LLP
Attorney for Plainti??
36 West Main Street, Suite 500
Rochester, New York 14614

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