A series of motions filed by the estate of Elizabeth Pontillo seeking money and property from Sam and Paul Pontillo was dismissed by County Court Judge Robert C. Noonan on June 30.
"Nonetheless, the instant motion will be denied in its entirety for want of a clear and convincing demonstration of either a likelihood of ultimate success on the merits, the prospect of irreparable injury or a balancing of the equities in a plaintiff's favor," Noonan wrote in his decision. "Accordingly, the Plaintiff's Motion is hereby denied, and the temporary restraining order previously granted is hereby vacated."
It's unclear how this ruling impacts the lawsuit filed against the Sam and Paul by the estate.
Brian Degnan, attorney for the estate, could not be reached this afternoon, and Sam Pontillo's attorney, Reid Whiting, refused to come to the phone.
Degnan filed motions in June requesting Sam Pontillo not be allowed to remove equipment or enter the property of the Pontillo's in Le Roy, that he return all business equipment taken, and that he pay back rents, taxes and profits associated with the Le Roy location.
The estate, being administered by John Forsyth, also sought back rent from Paul Pontillo for the time he was living at 64 Vernon Ave., Batavia, the former residence of his parents, and an accounting of various items believed to be in the house at one time.
In his answer to the motion, Whiting accused Forsyth of a conflict of interest and a lack of good faith in dealing with Sam Pontillo.
In an answering affidavit, Sam Pontillo says that as accountant for the various Pontillo's businesses in Genesee County, he had access to financial information and other company secrets, "many of which he is now using in a selective manner to the detriment of defendants. As such, he has an obvious conflict of interest as a litigant."
Sam also notes, to his "amazement," John Pontillo was not sued by the estate, despite being involved in the business operations at one time.
He accuses John and Paul of mismanaging the "'goose that laid the golden egg' to the point of insolvency and desperate need for a subprime mortgage."
"He (John) was personally and highly involved in the demise of the Batavia store and its foreclosure," Sam writes.
He accused John of removing a seven-ton HVAC unit from the Batavia location.
"John was an officer and manager of the Batavia store for a substantial time during which it failed to pay sales tax, payroll taxes and real property taxes and numerous suppliers," according to Sam.
One of the chief financial decisions that led to loss of the Batavia store, based The Batavian's previous reporting of this story, was taking out a mortgage on the property in November 2008. Sam Pontillo states that he "adamantly opposed" his mother's execution of the mortgage, "particularly at the exorbitant rate of 16 percent."
"Paul and John, not just Paul, have a lot to explain about the demise of that business," Sam writes.
As for the property Forsyth claimed belonged to the estate, Sam Pontillo provide copies of checks showing that he spent about $20,000 on the equipment, out of his own business entity, Le Roy Dough Boys, Inc.
Sam Pontillo also accuses John Forsyth of not answering his offers to buy the Le Roy Store or a proposed lease on the property.
As part of the lawsuit, the estate has sought some $50,000 in back rent from San Pontillo for the Le Roy location. The back rent is calculated at $2,500 per month. An affidavit from Daniel K. O'Shea, who says he's a lifelong resident of Le Roy, and an owner of downtown village property, says there is no property in the village worth more than $1,000 per month and the total estimated value of the Le Roy location is $100,000.
Sam states that even though he was never associated with Sam's Tomato Pies, either as employee, shareholder or director, the IRS has placed a lien on the home owned solely by his wife in Albany in an attempt to collect back taxes from the corporation.
"Plaintiffs and my brothers are lashing out at me without any factual or legal justification," Sam writes. "I suspect they are solely motivated by the base emotion of envy as a result of the position I secured with the new owners of the Batavia store
"As manager of the Batavia pizzeria, opened on April 6, 2010, I am not in competition with the Pontillo Family Partnership or the estate. I am merely earning a just living to support my wife and three sons, despite the shabby obstacles plaintiffs and my brothers have tried to place in my path."