Preview
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
EXHIBIT L
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
1
1
2 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
3 ------------------------------------------X
MICHAEL MESSINA,
4
PLAINTIFF,
5
-against- Index No.
6 604204/14
7 MORTON VILLAGE REALTY INC., and PHILLIPS
INTERNATIONAL REALTY INC.,
8
DEFENDANTS.
9 ------------------------------------------X
MORTON VILLAGE REALTY INC. and PHILLIPS
10 INTERNATIONAL REALTY, INC.,
11 THIRD-PARTY PLAINTIFFS,
12 -against-
13 MR. JOE'S PIZZERIA & RESTORANTE, RUAGO, LLC
d/b/a PIZZA DELIGHT, INC., ANTO, INC.,
14.. GUISEPPE FRANZELLA, JOSEPH LOGLISCI,
MICHAEL RUGGIERO, DIG ENTERPRISE, INC., and
15 PETE LAMARIANA,
16 THIRD-PARTY DEFENDANTS.
__________________________________________x
17
18 DATE: December 4, 2017
19 TIME: 11:10 A.M.
20
21
22 (DEPOSITION OF MICHAEL RUGGIERO)
23
24
25
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
1
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
2
1
2 DATE: December 4, 2017
3 TIME: 11:10 A.M.
4
5 EXAMINATION BEFORE TRIAL of the
6 Third-Party Defendant, MICHAEL RUGGIERO,
7 taken by the Respective Parties, pursuant
8 to Order, held at the offices of Diamond
9 Reporting & Legal Video, 114 Old Country
10 Road, Mineola, New York 11501, before Laura
11 Anzelone, a Notary Public of the State of
12 New York.
13
14
15
16
17
18
19
20
21
22
23
24
25
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
2
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
3
1
2 A P P E A R A N C E S :
3
4 DELL & DEAN, PLLC
Attorneys for the Plaintiff
Franklin -
5 1225 Avenue Suite 450
Garden City, New York 11530
6 BY: JOSEPH C. MUZIO, ESQ.
File No. 02379
7
8
McANDREW, CONBOY & PRISCO
9 Attorneys for the Defendants and
Third-Party Plaintiffs
10 MORTON VILLAGE REALTY INC. and
PHILLIPS INTERNATIONAL REALTY, INC.
-
11 1860 Walt Whitman Road Suite 800
Melville, New York 11747
12 BY: ROBERT CONBOY, ESQ.
File No. 067-217-RMC
13
14
ARMIENTI, DeBELLIS, GUGLIELMO & RHODEN, LLP
15 Attorneys for the Third-Party Defendants
MR. JOE'S PIZZERIA & RESTORANTE,
16 RUAGO, LLC d/b/a PIZZA DELIGHT, INC. and
MICHAEL RUGGIERO
-
17 170 Old Country Road Suite 607
Mineola, New York 11501
18 BY: MICHAEL PAGLINO, ESQ.
19
20 CONGDON, FLAHERTY, O'CALLAGHAN, REID,
CONLON, TRAVIS & FISHLINGER
21 Attorneys for the Third-Party Defendant
DIG ENTERPRISES, INC. and PETE LAMARIANA
22 333 Earle Ovington Boulevard
Uniondale, New York 11553
23 BY: KATHY LEYDEN, ESQ.
File No. AMT045
24
25
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
3
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
4
1
2 221. UNIFORM RULES FOR THE
CONDUCT OF DEPOSITIONS
3 221.1 Objections at Depositions
(a) Objections in general. No objections
4 shall be made at a deposition except those
which, pursuant to subdivision (b), (c) or
5 (d) of Rule 3115 of the Civil Practice Law
and Rules, would be waived if not
6 interposed, and except in compliance with
subdivision (e) of such rule. All
7 objections made at a deposition shall be
noted by the officer before whom the
8 deposition is taken, and the answer shall
be given and the deposition shall proceed
9 subject to the objections and to the right
of a person to apply for appropriate relief
10 pursuant to Article 31 of the CPLR.
(b) Speaking objections restricted. Every
11 objection raised during a deposition shall
be stated succinctly and framed so as not
12 to suggest an answer to the deponent and,
at the request of the questioning attorney,
13 shall include a clear statement as to any
defect in form or other basis of error or
14 irregularity. Except to the extent
permitted by CPLR Rule 3115 or by this
15 rule, during the course of the examination
persons in attendance shall not make
16 statements or comments that interfere with
the questioning.
17 221.2 Refusal to answer when objection is
made. A deponent shall answer all questions
18 at a deposition, except (i) to preserve a
privilege or right of confidentiality, (ii)
19 to enforce a limitation set forth in an
order of the court, or (iii) when the
20 question is plainly improper and would, if
answered, cause significant prejudice to
21 any person. An attorney shall not direct a
deponent not to answer except as provided
22 in CPLR Rule 3115 or this subdivision.
Any refusal to answer or direction not to
23 answer shall be accompanied by a succinct
and clear statement of the basis therefor.
24 If the deponent does not answer a question,
the examining party shall have the right to
25 complete the remainder of the deposition.
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
4
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
5
1
2 221. UNIFORM RULES FOR THE
CONDUCT OF DEPOSITIONS
3
221.3 Communication with the deponent
4 An attorney shall not interrupt the
deposition for the purpose of communicating
5 with the deponent unless all parties
consent or the communication is made for
6 the purpose of determining whether the
question should not be answered on the
7 grounds set forth in section 221.2 of these
rules and, in such event, the reason for
8 the communication shall be stated for the
record succinctly and clearly.
9
10 IT IS FURTHER STIPULATED AND AGREED
that the transcript may be signed before
11 any Notary Public with the same force and
effect as if signed before a clerk or a
12 Judge of the court.
13
IT IS FURTHER STIPULATED AND AGREED
14 that the examination before trial may be
utilized for all purposes as provided by
15 the CPLR.
16
IT IS FURTHER STIPULATED AND AGREED
17 that all rights provided to all parties by
the CPLR cannot be deemed waived and the
18 appropriate sections of the CPLR shall be
controlling with respect hereto.
19
20 IT IS FURTHER STIPULATED AND AGREED
by and between the attorneys for the
21 respective parties hereto that a copy of
this examination shall be furnished,
22 without charge, to the attorneys
representing the witness testifying herein.
23
24
25
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
5
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
6
1 M. RUGGIERO
2 M I C H A E L R U G G I E R O , called as
3 a witness, having been first duly sworn by
4 a Notary Public of the State of New York,
5 was examined and testified as follows:
6 EXAMINATION BY
7 MR. CONBOY:
8 Q. Please state your name for the
9 record.
10 A. Michael Ruggiero.
11 Q. Where do you reside?
12 A. 7 Central Drive, Glen Head, New
13 York 11545.
14 Q. Good morning, Mr. Ruggiero.
15 A. Good morning.
16 Q. My name is Robert Conboy. I am
17 an attorney for Morton Village Realty and
18 Phillips International.
19 Before we begin I have some
20 ground rules. First, I ask that all of
21 your answers be verbal. The court reporter
22 can't take down nods of the head, hands
23 gestures mand things like that.
24 A. Okay.
25 Q. Second, I ask that you let me
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
6
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
7
1 M. RUGGIERO
2 ask my full question before you answer so
3 we can get a clean record. Third, if you
4 don't understand any of my questions,
5 please let me know. I will try to rephrase
6 it so you better understand. If at any
7 time you need to take a break, speak with
8 your attorney, use the restroom or anything
9 like that, I have no problems doing so. I
10 just ask that if there is a question
11 pending, you answer the question and we can
12 take break. Okay?
13 A. Okay.
14 Q. The 7 Central Drive address in
15 Glen Head, is that your home address or
16 work?
17 A. Home.
18 Q. Who do you reside with at
19 7 Central Drive in Glen Head?
20 A. My wife and my four kids.
21 Q. What is your wife's name?
22 A. Rose.
23 Is that important?
24 MR. PAGLINO: Like told you,
25 they can ask general questions. They
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
7
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
8
1 M. RUGGIERO
2 are not going to subpoena your wife.
3 It's okay.
4 MR. CONBOY: Will you accept
5 service on his behalf if we consent
6 to the home address?
7 MR. PAGLINO: Sure.
8 Q. Do you currently own Mr. Joe's
9 Pizzeria & Restaurant?
10 A. No.
11 Q. When was the last time you
12 owned Mr. Joe's?
13 A. I sold it November 3, 2016.
14 Q. Who did you sell Mr. Joe's to?
15 A. The guy's name was Michael
16 Ahmed. The name of the company was Ahmed.
17 No. The name of the company was Plainview
18 Pizza, Inc. or something like that.
19 Q. Did you own Mr. Joe's pizza as
20 a corporation, individually or something
21 else?
22 A. It was an L.L.C. It was Ruago,
23 L.L.C. doing business as Mr. Joe's.
24 Q. You are you the president of
25 Ruago, L.L.C.?
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
8
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
9
1 M. RUGGIERO
2 A. I am a managing member.
3 Q. Are there other members of
4 Ruago?
5 A. There was in the beginning, but
6 then he backed out.
7 Q. Who was the other individual?
8 A. Rocco Augustino.
9 Q. When was Ruago formed?
10 A. we bought it -- I have no
Well,
11 idea. I don't remember.
12 Q. Can you estimate how long you
13 have owned it for?
14 A. I have had it for maybe four
15 years. If we backtrack, maybe 2012.
16 Q. Did Ruago own anything else
17 besides Mr. Joe's Pizza?
18 A. No.
19 Q. Was Ruago formed to buy
20 Mr. Joe's Pizza?
21 A. Yes, sir.
22 Q. When did Rocco back out of
23 being a member?
24 A. About two years after we were
25 in business.
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
9
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
10
1 M. RUGGIERO
2 Q. Would that be sometime in 2014?
3 A. If it was incorporated in 2012,
4 yes.
5 Q. Why did Rocco leave?
6 A. He got married and wanted to
7 pursue other things. He got married, had a
8 kid right away, and he wanted to pursue
9 other things.
10 Q. Where is Mr. Joe's Pizzeria
11 located?
12 A. 1048 Old Country Road,
13 Plainview, New York. The zip I don't
14 remember. I think it was 11803. Is that
15 right?
16 Q. Was that part of a shopping
17 center?
18 A. Yes.
19 Q. Did you have neighboring
20 tenants next to Mr. Joe's Pizzeria?
21 A. Yes.
22 Q. Who was the tenant located if
23 you are looking at Mr. Joe's to the left?
24 A. If I am looking at it to the
25 left was Sleepy's.
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
10
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
11
1 M. RUGGIERO
2 Q. What was to the right?
3 A. Shop Rite.
4 Q. Were you located at 1048 Old
5 Country Road pursuant to a lease agreement?
6 A. Yes. I bought an existing
7 business.
8 Q. Who did you buy the existing
9 business from?
10 A. Anton.
11 Q. Did they operate a pizza place
12 there before you bought it?
13 A. Yes.
14 Q. Do you know the name of the
15 pizza place before you bought it?
16 A. Cuccini.
17 Q. Did you change it to Mr. Joe's
18 after you bought it?
19 A. Yes.
20 Q. Was Anton located at 1048 Old
21 Country Road pursuant to a lease agreement?
22 A. Yes.
23 Q. Did you assume that lease
24 agreement?
25 A. Did I assume it? Yes.
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
11
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
12
1 M. RUGGIERO
2 Q. When you assumed the lease
3 agreement, did you read the lease
4 agreement?
5 A. My attorney did with me.
6 Q. Who is your attorney?
7 A. Back then it was John Gentile.
8 Q. Did Mr. Gentile ever tell you
9 the terms of the lease agreement?
10 A. Yes.
11 MR. CONBOY: Would you please
12 mark these.
13 (Whereupon, the aforementioned
14 referenced documents were marked as
15 Defendant's Exhibits A and B for
16 identification by the Reporter.)
17 Q. Mr. Ruggiero, I am going to
18 show you what has been marked as
19 Defendant's Exhibit B with today's date,
20 December 4, 2017.
21 A. Okay.
22 Q. Do you recognize that document?
23 A. It is an asset purchase
24 agreement. Yes.
25 Q. On the last page of that
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
12
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
13
1 M. RUGGIERO
2 document, is that your signature?
3 A. Yes.
4 Q. Is that the asset purchase
5 agreement between Anton and you, Ruago
6 L.L.C. for the premises located at 1048 Old
7 Country Road?
8 A. Yes.
9 Q. Is that dated December 9, 2011?
10 A. It looks like it. Yes.
11 Q. I am going to show you what has
12 been marked as Defendant's Exhibit A with
13 today's date. Please take a look at that.
14 A. Okay.
15 Q. Do you recognize that document?
16 A. It looks like the lease between
17 Morton Village and Pizza Delight, the
18 person that Anton bought it from.
19 Q. Was it there an amendment to
20 the lease that named you as the tenant of
21 the property?
22 A. Yes.
23 MR. CONBOY: Would you please
24 mark this.
25 (Whereupon, the aforementioned
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
13
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
14
1 M. RUGGIERO
2 referenced document was marked as
3 Defendant's Exhibit C for
4 identification by the Reporter.)
5 Q. I am going to show you what has
6 been marked as Defendant's Exhibit C with
7 today's date.
8 A. Okay.
9 Q. Do you recognize that document?
10 A. Yes. He would have had the
11 first. I got the second. Yes.
12 Q. What is the date of the second
13 amendment to the lease?
14 A. December 9, 2011.
15 Q. Did you sign that second
16 amendment when you bought the location at
17 1048 Old Country Road?
18 A. Yes. That's me.
19 Q. Is that your signature on
20 Page 8 of Defendant's Exhibit C?
21 A. Yes.
22 Q. Just going back to Defendant's
23 Exhibit A for a moment, when you signed the
24 asset purchase agreement and the amendment
25 of the lease, did you personally review the
DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com
14
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018
15
1 M. RUGGIERO
Preview
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 EXHIBIT L FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 1 1 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU 3 ------------------------------------------X MICHAEL MESSINA, 4 PLAINTIFF, 5 -against- Index No. 6 604204/14 7 MORTON VILLAGE REALTY INC., and PHILLIPS INTERNATIONAL REALTY INC., 8 DEFENDANTS. 9 ------------------------------------------X MORTON VILLAGE REALTY INC. and PHILLIPS 10 INTERNATIONAL REALTY, INC., 11 THIRD-PARTY PLAINTIFFS, 12 -against- 13 MR. JOE'S PIZZERIA & RESTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., 14.. GUISEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC., and 15 PETE LAMARIANA, 16 THIRD-PARTY DEFENDANTS. __________________________________________x 17 18 DATE: December 4, 2017 19 TIME: 11:10 A.M. 20 21 22 (DEPOSITION OF MICHAEL RUGGIERO) 23 24 25 DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 1 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 2 1 2 DATE: December 4, 2017 3 TIME: 11:10 A.M. 4 5 EXAMINATION BEFORE TRIAL of the 6 Third-Party Defendant, MICHAEL RUGGIERO, 7 taken by the Respective Parties, pursuant 8 to Order, held at the offices of Diamond 9 Reporting & Legal Video, 114 Old Country 10 Road, Mineola, New York 11501, before Laura 11 Anzelone, a Notary Public of the State of 12 New York. 13 14 15 16 17 18 19 20 21 22 23 24 25 DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 2 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 3 1 2 A P P E A R A N C E S : 3 4 DELL & DEAN, PLLC Attorneys for the Plaintiff Franklin - 5 1225 Avenue Suite 450 Garden City, New York 11530 6 BY: JOSEPH C. MUZIO, ESQ. File No. 02379 7 8 McANDREW, CONBOY & PRISCO 9 Attorneys for the Defendants and Third-Party Plaintiffs 10 MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY, INC. - 11 1860 Walt Whitman Road Suite 800 Melville, New York 11747 12 BY: ROBERT CONBOY, ESQ. File No. 067-217-RMC 13 14 ARMIENTI, DeBELLIS, GUGLIELMO & RHODEN, LLP 15 Attorneys for the Third-Party Defendants MR. JOE'S PIZZERIA & RESTORANTE, 16 RUAGO, LLC d/b/a PIZZA DELIGHT, INC. and MICHAEL RUGGIERO - 17 170 Old Country Road Suite 607 Mineola, New York 11501 18 BY: MICHAEL PAGLINO, ESQ. 19 20 CONGDON, FLAHERTY, O'CALLAGHAN, REID, CONLON, TRAVIS & FISHLINGER 21 Attorneys for the Third-Party Defendant DIG ENTERPRISES, INC. and PETE LAMARIANA 22 333 Earle Ovington Boulevard Uniondale, New York 11553 23 BY: KATHY LEYDEN, ESQ. File No. AMT045 24 25 DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 3 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 4 1 2 221. UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS 3 221.1 Objections at Depositions (a) Objections in general. No objections 4 shall be made at a deposition except those which, pursuant to subdivision (b), (c) or 5 (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not 6 interposed, and except in compliance with subdivision (e) of such rule. All 7 objections made at a deposition shall be noted by the officer before whom the 8 deposition is taken, and the answer shall be given and the deposition shall proceed 9 subject to the objections and to the right of a person to apply for appropriate relief 10 pursuant to Article 31 of the CPLR. (b) Speaking objections restricted. Every 11 objection raised during a deposition shall be stated succinctly and framed so as not 12 to suggest an answer to the deponent and, at the request of the questioning attorney, 13 shall include a clear statement as to any defect in form or other basis of error or 14 irregularity. Except to the extent permitted by CPLR Rule 3115 or by this 15 rule, during the course of the examination persons in attendance shall not make 16 statements or comments that interfere with the questioning. 17 221.2 Refusal to answer when objection is made. A deponent shall answer all questions 18 at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) 19 to enforce a limitation set forth in an order of the court, or (iii) when the 20 question is plainly improper and would, if answered, cause significant prejudice to 21 any person. An attorney shall not direct a deponent not to answer except as provided 22 in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to 23 answer shall be accompanied by a succinct and clear statement of the basis therefor. 24 If the deponent does not answer a question, the examining party shall have the right to 25 complete the remainder of the deposition. DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 4 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 5 1 2 221. UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS 3 221.3 Communication with the deponent 4 An attorney shall not interrupt the deposition for the purpose of communicating 5 with the deponent unless all parties consent or the communication is made for 6 the purpose of determining whether the question should not be answered on the 7 grounds set forth in section 221.2 of these rules and, in such event, the reason for 8 the communication shall be stated for the record succinctly and clearly. 9 10 IT IS FURTHER STIPULATED AND AGREED that the transcript may be signed before 11 any Notary Public with the same force and effect as if signed before a clerk or a 12 Judge of the court. 13 IT IS FURTHER STIPULATED AND AGREED 14 that the examination before trial may be utilized for all purposes as provided by 15 the CPLR. 16 IT IS FURTHER STIPULATED AND AGREED 17 that all rights provided to all parties by the CPLR cannot be deemed waived and the 18 appropriate sections of the CPLR shall be controlling with respect hereto. 19 20 IT IS FURTHER STIPULATED AND AGREED by and between the attorneys for the 21 respective parties hereto that a copy of this examination shall be furnished, 22 without charge, to the attorneys representing the witness testifying herein. 23 24 25 DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 5 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 6 1 M. RUGGIERO 2 M I C H A E L R U G G I E R O , called as 3 a witness, having been first duly sworn by 4 a Notary Public of the State of New York, 5 was examined and testified as follows: 6 EXAMINATION BY 7 MR. CONBOY: 8 Q. Please state your name for the 9 record. 10 A. Michael Ruggiero. 11 Q. Where do you reside? 12 A. 7 Central Drive, Glen Head, New 13 York 11545. 14 Q. Good morning, Mr. Ruggiero. 15 A. Good morning. 16 Q. My name is Robert Conboy. I am 17 an attorney for Morton Village Realty and 18 Phillips International. 19 Before we begin I have some 20 ground rules. First, I ask that all of 21 your answers be verbal. The court reporter 22 can't take down nods of the head, hands 23 gestures mand things like that. 24 A. Okay. 25 Q. Second, I ask that you let me DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 6 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 7 1 M. RUGGIERO 2 ask my full question before you answer so 3 we can get a clean record. Third, if you 4 don't understand any of my questions, 5 please let me know. I will try to rephrase 6 it so you better understand. If at any 7 time you need to take a break, speak with 8 your attorney, use the restroom or anything 9 like that, I have no problems doing so. I 10 just ask that if there is a question 11 pending, you answer the question and we can 12 take break. Okay? 13 A. Okay. 14 Q. The 7 Central Drive address in 15 Glen Head, is that your home address or 16 work? 17 A. Home. 18 Q. Who do you reside with at 19 7 Central Drive in Glen Head? 20 A. My wife and my four kids. 21 Q. What is your wife's name? 22 A. Rose. 23 Is that important? 24 MR. PAGLINO: Like told you, 25 they can ask general questions. They DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 7 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 8 1 M. RUGGIERO 2 are not going to subpoena your wife. 3 It's okay. 4 MR. CONBOY: Will you accept 5 service on his behalf if we consent 6 to the home address? 7 MR. PAGLINO: Sure. 8 Q. Do you currently own Mr. Joe's 9 Pizzeria & Restaurant? 10 A. No. 11 Q. When was the last time you 12 owned Mr. Joe's? 13 A. I sold it November 3, 2016. 14 Q. Who did you sell Mr. Joe's to? 15 A. The guy's name was Michael 16 Ahmed. The name of the company was Ahmed. 17 No. The name of the company was Plainview 18 Pizza, Inc. or something like that. 19 Q. Did you own Mr. Joe's pizza as 20 a corporation, individually or something 21 else? 22 A. It was an L.L.C. It was Ruago, 23 L.L.C. doing business as Mr. Joe's. 24 Q. You are you the president of 25 Ruago, L.L.C.? DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 8 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 9 1 M. RUGGIERO 2 A. I am a managing member. 3 Q. Are there other members of 4 Ruago? 5 A. There was in the beginning, but 6 then he backed out. 7 Q. Who was the other individual? 8 A. Rocco Augustino. 9 Q. When was Ruago formed? 10 A. we bought it -- I have no Well, 11 idea. I don't remember. 12 Q. Can you estimate how long you 13 have owned it for? 14 A. I have had it for maybe four 15 years. If we backtrack, maybe 2012. 16 Q. Did Ruago own anything else 17 besides Mr. Joe's Pizza? 18 A. No. 19 Q. Was Ruago formed to buy 20 Mr. Joe's Pizza? 21 A. Yes, sir. 22 Q. When did Rocco back out of 23 being a member? 24 A. About two years after we were 25 in business. DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 9 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 10 1 M. RUGGIERO 2 Q. Would that be sometime in 2014? 3 A. If it was incorporated in 2012, 4 yes. 5 Q. Why did Rocco leave? 6 A. He got married and wanted to 7 pursue other things. He got married, had a 8 kid right away, and he wanted to pursue 9 other things. 10 Q. Where is Mr. Joe's Pizzeria 11 located? 12 A. 1048 Old Country Road, 13 Plainview, New York. The zip I don't 14 remember. I think it was 11803. Is that 15 right? 16 Q. Was that part of a shopping 17 center? 18 A. Yes. 19 Q. Did you have neighboring 20 tenants next to Mr. Joe's Pizzeria? 21 A. Yes. 22 Q. Who was the tenant located if 23 you are looking at Mr. Joe's to the left? 24 A. If I am looking at it to the 25 left was Sleepy's. DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 10 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 11 1 M. RUGGIERO 2 Q. What was to the right? 3 A. Shop Rite. 4 Q. Were you located at 1048 Old 5 Country Road pursuant to a lease agreement? 6 A. Yes. I bought an existing 7 business. 8 Q. Who did you buy the existing 9 business from? 10 A. Anton. 11 Q. Did they operate a pizza place 12 there before you bought it? 13 A. Yes. 14 Q. Do you know the name of the 15 pizza place before you bought it? 16 A. Cuccini. 17 Q. Did you change it to Mr. Joe's 18 after you bought it? 19 A. Yes. 20 Q. Was Anton located at 1048 Old 21 Country Road pursuant to a lease agreement? 22 A. Yes. 23 Q. Did you assume that lease 24 agreement? 25 A. Did I assume it? Yes. DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 11 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 12 1 M. RUGGIERO 2 Q. When you assumed the lease 3 agreement, did you read the lease 4 agreement? 5 A. My attorney did with me. 6 Q. Who is your attorney? 7 A. Back then it was John Gentile. 8 Q. Did Mr. Gentile ever tell you 9 the terms of the lease agreement? 10 A. Yes. 11 MR. CONBOY: Would you please 12 mark these. 13 (Whereupon, the aforementioned 14 referenced documents were marked as 15 Defendant's Exhibits A and B for 16 identification by the Reporter.) 17 Q. Mr. Ruggiero, I am going to 18 show you what has been marked as 19 Defendant's Exhibit B with today's date, 20 December 4, 2017. 21 A. Okay. 22 Q. Do you recognize that document? 23 A. It is an asset purchase 24 agreement. Yes. 25 Q. On the last page of that DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 12 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 13 1 M. RUGGIERO 2 document, is that your signature? 3 A. Yes. 4 Q. Is that the asset purchase 5 agreement between Anton and you, Ruago 6 L.L.C. for the premises located at 1048 Old 7 Country Road? 8 A. Yes. 9 Q. Is that dated December 9, 2011? 10 A. It looks like it. Yes. 11 Q. I am going to show you what has 12 been marked as Defendant's Exhibit A with 13 today's date. Please take a look at that. 14 A. Okay. 15 Q. Do you recognize that document? 16 A. It looks like the lease between 17 Morton Village and Pizza Delight, the 18 person that Anton bought it from. 19 Q. Was it there an amendment to 20 the lease that named you as the tenant of 21 the property? 22 A. Yes. 23 MR. CONBOY: Would you please 24 mark this. 25 (Whereupon, the aforementioned DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 13 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 14 1 M. RUGGIERO 2 referenced document was marked as 3 Defendant's Exhibit C for 4 identification by the Reporter.) 5 Q. I am going to show you what has 6 been marked as Defendant's Exhibit C with 7 today's date. 8 A. Okay. 9 Q. Do you recognize that document? 10 A. Yes. He would have had the 11 first. I got the second. Yes. 12 Q. What is the date of the second 13 amendment to the lease? 14 A. December 9, 2011. 15 Q. Did you sign that second 16 amendment when you bought the location at 17 1048 Old Country Road? 18 A. Yes. That's me. 19 Q. Is that your signature on 20 Page 8 of Defendant's Exhibit C? 21 A. Yes. 22 Q. Just going back to Defendant's 23 Exhibit A for a moment, when you signed the 24 asset purchase agreement and the amendment 25 of the lease, did you personally review the DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 14 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 09/05/2018 15 1 M. RUGGIERO