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FILED: NASSAU COUNTY CLERK 09/03/2015 11:04 AM INDEX NO. 604244/2015
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/03/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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PARTNERS IN SAFETY INC.,
Plaintiff,
AFFIDAVIT
- against-
Index No. 604244/2015
CARDWORKS ACQUIRING LLC and
MERRICK BANK CORPORATION,
Defendants.
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STATE OF NEW YORK)
COUNTY OF NASSAU)
AMY SNYDER, being duly sworn, deposes and says:
I am the accounting manager for Partners in Safety Inc., and as such I am
personally familiar with all of the facts and circumstances concerning this matter.
This Affidavit is submitted in opposition to the motion of the defendants to dismiss
this action on the sole grounds that we brought the action in the wrong venue.
Defendant's motion should be denied and the plaintiff should be awarded its costs
and attorneys fees in defending same.
Defendant's sole argument is based upon a venue provision stated in a contract
which they attach as being the contract that I signed on behalf of the plaintiff.
Simply stated that is not the contract I signed nor is it the contract we are suing on.
The contract we are suing on has no venue provision.
Attached hereto as Exhibit I is the contract I signed, and the Court can plainly
see it is not the same as the one defendants present as their Exhibit A and B.
What transpired is as follows:
On July 12, 2013 defendant Card Works sent their salesman Andy Perry (a/k/a
Andrew Perry) "Perry" and Thomas A. Fazio to my office in Middletown, New York to
1
solicit credit card processing for Visa, Mastercard and Discover cards.
After I agreed to use their services, Perry prepared Exhibit I. I signed it and he
gave me a copy exactly as shown in my Exhibit I. He said this is alii needed.
He never mentioned any other terms and conditions, and certainly didn't tell me
that if there was any dispute over their services, or charges, I had to litigate in Salt Lake
County Utah. Had I seen that, or was told that, I would never have signed anything with
them. In fact, he said allmy inquiries and concern should be addressed to Cardworks
and the Bank at their Long Island offices in Woodbury, New York as indicated on their
business card (collectively Exhibit 2). Since we do business on Long Island, I was
comfortable with that.
In May, 2015, almost two years later, when the problem arose concerning the
270,000 fraudulent authorizations that accrued over a weekend, which they failed to
detect and protect us against, and then automatically deducting $25,000 fees therefore
from our checking account, we complained to them in Woodbury. In one of the
conversations they referred to their contract which they said had given them the right to
extract those charges. We checked our contract, Exhibit I,and since we couldn't find
any such reference, we asked for a copy of what they were referring to. They never
sent us anything. See attached email dated 6-10-15 as Exhibit 3. 1
Only after we engaged an attorney, and he requested a copy, did they send him
their Exhibits A and B.
In comparing their Exhibits A and B to our Exhibit I, it is evident that they signed
1 This is contrary to what Mr. Berma states in his affidavit that we never asked for
a copy of the Contract.
2:
and dated their contract on 7-16-13., some four days after I signed. Comparing them it
is clear that they added their two pages of terms and conditions, and made other
changes.
I never saw their changes, or additions until our attorney showed them to me.
Again, there is no venue clause in the contract I signed, and I never received or
accepted the contract they are relying on. Accordingly, I completely disavow the validity
of their contract.
By stating to me that what.1 signed was ail that was needed, and by not telling me
there was more to the contract, and by not sending their alleged contract to me to review
and approve, they intentionally defrauded me, and my employer, and took unfair
advantage of us; this should not be countenanced by any court.
According to the defendants we were responsible to have read and understood what
we received. That may be so, but we are not responsible for what we didn't receive and
the reason we didn't receive it is because they intentionally withheld it so that we wouldn't
see it.
WHEREFORE, for the reasons stated above, defendant's motion should be denied,
and plaintiff should be awarded legal fees and costs for their intentional fraud, together
with such other and further relief that may be just, proper and equitable.
Sworn to before me this
25th~Of August, 2015
./
3
Preview
FILED: NASSAU COUNTY CLERK 09/03/2015 11:04 AM INDEX NO. 604244/2015 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/03/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------------------------------------x PARTNERS IN SAFETY INC., Plaintiff, AFFIDAVIT - against- Index No. 604244/2015 CARDWORKS ACQUIRING LLC and MERRICK BANK CORPORATION, Defendants. ---------------------------------------------------------------------x STATE OF NEW YORK) COUNTY OF NASSAU) AMY SNYDER, being duly sworn, deposes and says: I am the accounting manager for Partners in Safety Inc., and as such I am personally familiar with all of the facts and circumstances concerning this matter. This Affidavit is submitted in opposition to the motion of the defendants to dismiss this action on the sole grounds that we brought the action in the wrong venue. Defendant's motion should be denied and the plaintiff should be awarded its costs and attorneys fees in defending same. Defendant's sole argument is based upon a venue provision stated in a contract which they attach as being the contract that I signed on behalf of the plaintiff. Simply stated that is not the contract I signed nor is it the contract we are suing on. The contract we are suing on has no venue provision. Attached hereto as Exhibit I is the contract I signed, and the Court can plainly see it is not the same as the one defendants present as their Exhibit A and B. What transpired is as follows: On July 12, 2013 defendant Card Works sent their salesman Andy Perry (a/k/a Andrew Perry) "Perry" and Thomas A. Fazio to my office in Middletown, New York to 1 solicit credit card processing for Visa, Mastercard and Discover cards. After I agreed to use their services, Perry prepared Exhibit I. I signed it and he gave me a copy exactly as shown in my Exhibit I. He said this is alii needed. He never mentioned any other terms and conditions, and certainly didn't tell me that if there was any dispute over their services, or charges, I had to litigate in Salt Lake County Utah. Had I seen that, or was told that, I would never have signed anything with them. In fact, he said allmy inquiries and concern should be addressed to Cardworks and the Bank at their Long Island offices in Woodbury, New York as indicated on their business card (collectively Exhibit 2). Since we do business on Long Island, I was comfortable with that. In May, 2015, almost two years later, when the problem arose concerning the 270,000 fraudulent authorizations that accrued over a weekend, which they failed to detect and protect us against, and then automatically deducting $25,000 fees therefore from our checking account, we complained to them in Woodbury. In one of the conversations they referred to their contract which they said had given them the right to extract those charges. We checked our contract, Exhibit I,and since we couldn't find any such reference, we asked for a copy of what they were referring to. They never sent us anything. See attached email dated 6-10-15 as Exhibit 3. 1 Only after we engaged an attorney, and he requested a copy, did they send him their Exhibits A and B. In comparing their Exhibits A and B to our Exhibit I, it is evident that they signed 1 This is contrary to what Mr. Berma states in his affidavit that we never asked for a copy of the Contract. 2: and dated their contract on 7-16-13., some four days after I signed. Comparing them it is clear that they added their two pages of terms and conditions, and made other changes. I never saw their changes, or additions until our attorney showed them to me. Again, there is no venue clause in the contract I signed, and I never received or accepted the contract they are relying on. Accordingly, I completely disavow the validity of their contract. By stating to me that what.1 signed was ail that was needed, and by not telling me there was more to the contract, and by not sending their alleged contract to me to review and approve, they intentionally defrauded me, and my employer, and took unfair advantage of us; this should not be countenanced by any court. According to the defendants we were responsible to have read and understood what we received. That may be so, but we are not responsible for what we didn't receive and the reason we didn't receive it is because they intentionally withheld it so that we wouldn't see it. WHEREFORE, for the reasons stated above, defendant's motion should be denied, and plaintiff should be awarded legal fees and costs for their intentional fraud, together with such other and further relief that may be just, proper and equitable. Sworn to before me this 25th~Of August, 2015 ./ 3