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Burgess 143 Pages

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For the reasons stated in Defendant's Post Trial Memorandum of Law, this court should rule in favor of the Defendant Maura Burgess and against the Plaintiffs by awarding Ms. Burgess attorney's fees in excess of $61,748.81 based upon the bills previously submitted to the court (refer to Defendant's Exhibit "B" and pages 23 and 24 of the transcript dated July 15, 2009) plus additional fees for our last day in court and the preparation of this Closing Statement and Post Trial Memorandum of Law.
143
; " SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------x FRANK BAUCO, Plaintiff, Index Number: 9199/07 -against- MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO Defendants. ------------------------------------------------------------------x AUG 1 4 2009 CHbEF CLEA"K WESTCHESTER SUPPfEU.! AND COUNTY COURTS ------------------------------------------------------------------x ANDREW GAMBARDELLA, Plaintiff, Index Number: 9198/07 -against- MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO Defendants. ------------------------------------------------------------------x PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO THE APPLICATION OF MAURA BURGESS FOR ATTORNEY FEES TRIVELLA, FORTE AND SMITH, LLP By: Denise Forte Attorneys for Plaintiffs FRANK BAUCO AND ANDREW GAMBARDELLA 1311 Mamaroneck Avenue, Suite 170 White Plains, New York 10605 Tel No.: (914) 949-9075 Fax No.: (914) 949-4752 \ \ '
Transcript
Page 1: Burgess 143 Pages

;

"

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

------------------------------------------------------------------x FRANK BAUCO,

Plaintiff, Index Number: 9199/07

-against-

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO ~t;CEIVED

Defendants.

------------------------------------------------------------------x

AUG 1 4 2009

CHbEF CLEA"K WESTCHESTER SUPPfEU.!

AND COUNTY COURTS ------------------------------------------------------------------x ANDREW GAMBARDELLA,

Plaintiff, Index Number: 9198/07

-against-

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO

Defendants.

------------------------------------------------------------------x

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO THE APPLICATION OF MAURA BURGESS FOR ATTORNEY FEES

TRIVELLA, FORTE AND SMITH, LLP By: Denise Forte Attorneys for Plaintiffs FRANK BAUCO AND ANDREW GAMBARDELLA 1311 Mamaroneck A venue, Suite 170 White Plains, New York 10605 Tel No.: (914) 949-9075 Fax No.: (914) 949-4752

\ \ ~ '

Page 2: Burgess 143 Pages

( ).

STATEMENT OF FACTS

Plaintiffs, Frank Bauco and Andrew Gambardella (hereinafter collectively referred to as

"Plaintiffs") loaned the business Parkway South Collision, fuc. d/b/a S & S Collision (hereinafter

referred to as "Company'' or "business") the sum of One Hundred Fifty Thousand Dollars

($150,000.00). Parkway South Collision, fuc. d/b/a S & S Collision was operating as an auto-body

shop. The registered owners of Parkway South Collision, fuc. d/b/a S & S Collision were Maura

Burgess and Jeanette Sergio, who are the wives of Richard Burgess and Stephen Sergio, respectively . •

Ms. Burgess did not actively participate in the operation of the business, but instead delegated that

responsibility to Mr. Richard Burgess.

Prior to loaning these monies to the Company, the Plaintiffs requested that the Company

execute a promissory note and a corporate confession of judgment in favor ofboth Mr. FrankBauco

and Mr. Andrew Gambardella. Moreover, the plaintiffs requested that the following individuals also

execute a promissory note and an affidavit of confession of judgment in favor of both Mr. Frank

Bauco and Mr. Andrew Gambardella: Maura Burgess, Richard Burgess, Stephen Sergio and Jeanette

Sergio. The promissory notes and the affidavits of confession of judgment were documents utilized

by the Plaintiffs in their attempt to secure repayment of their respective loans. Mr. Frank Bauco

presented both sets of documents to Mr. Richard Burgess to be executed and notarized by the

appropriate individuals. When the documents were returned to Mr. Bauco all of the documents were

signed and notarized. Neither Mr. Bauco nor Mr. Gambardella were involved in the procurement of

the execution and notary of these documents. The Plaintiff, Mr. Gambardella, in reliance upon his

receipt of these executed and notarized documents loaned the money to the Company. It is

2

Page 3: Burgess 143 Pages

undisputed that Mr. Andrew Gambardella wired $ 75,000.00 into an operating account of the

business upon his receipt of the executed loan documents. Mr. Bauco's loans to the Company

spanned a period of time both before and after the documents were signed and notarized. Moreover,

Steven Sergio, a named defendant in the action, although he is not an interested party with respect to

Ms. Burgess' application for attorney's fees, corroborated Mr. Bauco's testimony, by credibly

testifying at a March 3, 2008 hearing before Judge Liebowitz that Mr. Frank Bauco loaned money to

~ the Company both before and after the execution of the loan documents.

Ms. Maura Burgess maintained that she did not execute the promissory and the affidavit of

confession of judgment. However, Ms. Burgess did acknowledge that monies were wired into the

account of Parkway South Collision, Inc. d/b/a S & S Collision. She also admitted receiving

"papers" regarding the loan prior to her accounts being frozen. At the time these "papers" arrived at

her home, Ms. Burgess was immediately placed on notice that there might be obligations that could

impact her as an owner of Parkway South Collision, Inc. d/b/a S & S Collision. Ms. Burgess,

however, elected to do nothing and to allow her husband, Mr. Richard Burgess, to "take care of it."

Ms. Burgess never voiced any objection, either to Richard Burgess or to any other third party, with

respect to Richard Burgess' assertion that he is "taking care of it".

Judge Liebowitz found that the signatures of Ms. Maura Burgess were forged based upon a

hearing, which was conducted before him on March 3, 2008.

Counsel for Ms. Burgess is now seeking recovery of attorney's fees in excess of $60,000.00.

It is imperative that this Court be mindful of the following facts:

1] There is no dispute that Plaintiff, Andrew Gambardella wired into the business

3

Page 4: Burgess 143 Pages

account of Parkway South Collision fuc. d/b/a S&S Collision the sum of $75,000.00. Andrew

Gambardella has not received re-payment of this loan.

2] There is no evidence to rebut the statement of Plaintiff, Frank Bauco that he loaned

money to the business known as Parkway South Collision fuc. d/b/a S&S Collision both before and

after the execution of the promissory note and in the aggregate loaned in excess of Eighty Thousand

Dollars ($80,000.00) to said Company.

3] There is no dispute that Maura Burgess was fifty percent ( 50%) owner of the business

known as Parkway South Collision fuc. d/b/a S&S Collision at the times the loans were made to the

business.

4] There is no dispute that Maura Burgess and Richard Burgess were legally married and

sharing a family residence at the time the loans were made to Parkway South Collision fuc. d/b/a

S&S Collision.

5] There is no dispute that at the time the loans were made to Parkway South Collision

Inc. d/b/a S&S Collision that Richard Burgess and Stephen Sergio ran the day-to-day operations of

the Company.

6] There is no dispute that neither the Plaintiff, Frank Bauco nor the Plaintiff, Andrew

Gambardella were involved in the forgery of Maura Burgess' name.

7] There is no dispute that once the loans to the Company were in default, Plaintiffs

Frank Bauco and Andrew Gambardella obtained judgments against all four ( 4) of the following

individuals: Maura Burgess, Richard Burgess, Stephen Sergio and Jeanette Sergio.

8] There is no dispute that the Plaintiffs Frank Bauco and Andrew Gambardella served

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Page 5: Burgess 143 Pages

restraining notices upon various lending institutions to restrain the bank accounts of all four ( 4) of

the following individuals: Maura Burgess, Richard Burgess, Stephen Sergio and Jeanette Sergio.

9] There is no dispute that a contract does not exist whereby Maura Burgess is

contractually entitled to recovery of her attorney's fees.

1 O] The only way Maura Burgess can be successful in her application for attorney's fees

is if this Honorable Court finds that the Plaintiffs, Mr. Frank Bauco and Mr. Andrew Gambardella

engaged in frivolous conduct in attempting to enforce the promissory note and confession of

judgment which was purportedly executed by Ms. Maura Burgess.

11] Once Judge Liebowitz rendered his decision that the signature of Ms. Burgess was

forged, the Plaintiffs did not engage in any further collection activity as same relates to Ms. Burgess.

The defendant's application for attorney's fees are at best anemic, and potentially could be

deemed a frivolous application before this court. When questioned as to why the defendant believes

the case is frivolous, Ms. Burgess basically provided the following reasons: 1] because there is no

documentary evidence that Frank Bauco loaned $75,000.00; 2] because the plaintiffs' wished to

exercise their right to cross-examine a Detective who expressed his belief that Ms. Burgess'

signature was forged and 3] because the plaintiffs' wished to exercise their right to cross-examine a

handwriting expert who provided a report that the signature of Maura Burgess was forged.

Thereafter, the defendant's arguments verge on non-sensical conspiracy theories. Without any basis

in fact, Ms. Burgess testified that the plaintiffs singled her out in their enforcement efforts. I will

address each of these allegations in order.

As an initial matter, Mr. Frank Bauco provided credible, and most importantly, undisputed

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Page 6: Burgess 143 Pages

evidence that he has loaned money to the business of Parkway South Collision Inc. d/b/a S&S

Collision, both before and after the promissory notes were executed. Mr. Bauco produced

documentary evidence of prior loans to Mr. Richard Burgess from as far back as 1997. Mr. Bauco

produced documentary evidence of credit card charges, which were charged on his personal

American Express Card for the business of Parkway South Collision Inc. d/b/a S&S Collision in

excess of$ 27,000.00. Mr. Bauco testified consistently that the loans to Parkway South Collision

Inc. d/b/a S&S Collision were made over a period of time and were made in the form of credit card

charges, cash and miscellaneous loans, which totaled over $80,000.00. The defendant failed to

produce any witness who could testify that Mr. Bauco did not make these loans to Parkway South

Collision Inc. d/b/a S&S Collision. In fact, Mr. Stephen Sergio at the March 3, 2008 hearing before

Judge Liebowitz testified as follows:

Beginning on page 54 of the transcript:

Q. Did there come a time where you borrowed money from Frank Bauco?

A. Yes

Q. When was that?

Ms. Forte: Objection to the form of the question as, is counsel asking about Mr. Sergio

individually or the corporation?

THE COURT: Clarify

Q. Did you personally borrow money?

A. No

Q. Did the business borrow money from Mr. Bauco?

6

Page 7: Burgess 143 Pages

A. Yes

Q. When was that?

A. I don't know the dates. I don't remember the dates. A couple years ago.

On Page 56 of the transcript:

Q. So you signed a promissory note for a loan that was made prior to you coming in?

A. Prior to and I believe after also. I believe there was a credit card used for something.

On Page 57 of the transcript:

Q. After you signed that did Parkway South receive any money from Mr. Bauco?

A. I believe that Rick used the credit card.

On Page 58 of the transcript:

Q. Can you please explain to the Court why you signed that promissory note?

A. Rick told me Frank Bauco was owed money.

Q. Owed money prior to signing that?

A. I think both

Q. Do you know how much was supposedly lent?

A. I don't know the exact-this says $75,000.00 I know Mr. Bauco had dealings with

Rick. I know he had dealings with Rick.

Attached hereto as Exhibit "A" are pages 54 through and including 58 of the transcript from

the March 3, 2008 hearing before Judge Liebowitz. Also the court should take note that all of the

above-referenced testimony was elicited by Attorney Staropoli on direct examination. It is

preposterous that the defendant now argue that the loans by Frank Bauco were never made, when

7

Page 8: Burgess 143 Pages

their own witness gave sworn testimony to the contrary.

Also counsel for the defendant made much to do about nothing regarding several checks

which were cut from the business account of Parkway South Collision Inc. d/b/a S&S Collision.

However, as the undisputed documentary evidence revealed, much to opposing counsel's chagrin,

many of the checks bounced. Specifically, check number 1318 in the amount of$ 14,284.10

bounced; check number 1319 in the amount of $400. 00 bounced; check number 1411 in the amount

of$ 4,000.00 bounced and check number 1412 in the amount of$400.00 bounced.

In addition, opposing counsel argued that certain checks, which were cut immediately

following Andrew Gambardella's wire of$75,000.00 into said account, served to re-pay Mr. Frank

Bauco's loan. Specifically, a$ 5,000.00 check payable to Michael Bauco. This allegation did not

hold true as Mr. Frank Bauco exp~ained that his son, Michael Bauco earned a commission from

Parkway South Collision Inc. d/b/a S&S Collision, for his efforts in obtaining a loan for the business.

Also, at the high of opposing counsel's conspiracy theory was her allegations regarding checks

which were paid by Parkway South Collision Inc. d/b/a S&S Collision to a company by the name of

We-Built and an individual by the name of Alex Biagoni. However, once again, these theories were

not supported by the evidence adduced at trial. As testified to by Mr. Frank Bauco, prior to Mr.

Gambardella and Mr. Bauco loaning the $150,000.00 to Parkway South Collision Inc. d/b/a S&S

Collision, Parkway South Collision Inc. d/b/a S&S Collision had a take a bridge loan from both We­

Built and Alex Biagoni. The defendant did not offer one shred of evidence to dispute this testimony.

If the defendant felt as ifMr. Bauco was not being truthful in his testimony, any one of the following

individuals could have been subpoenaed to testify: Richard Burgess, Stephen Sergio; Alex Biagoni;

8

Page 9: Burgess 143 Pages

or Michael Bauco. However, the defendant chose not to do so. Therefore a negative inference must

be drawn.

Defendant's next argument is that the plaintiffs should have ceased their collection efforts as

against Ms. Burgess upon the opinion of a Detective and/or a written report from a hand writing

expert. Counsel for Ms. Burgess argues in essence that the Plaintiffs' engaged in frivolous conduct

inasmuch as they did not accept the opinion of a New Rochelle Police Detective when he expressed

his belief that the signature of Maura Burgess was forged. As an initial matter, Detective Benge

acknowledged that he never completed his investigation as it became apparent that if indeed any

wrongdoing had been committed, it had been committed outside his jurisdiction. It is respectfully

submitted that the Plaintiffs are entitled to fundamental due process and should be permitted the

opportunity to have their counsel, in open court, cross-examine the Detective. This fundamental

right is clearly not frivolous. Similarly, Counsel for Maura Burgess argues that the Plaintiffs should

have taken the report of a handwriting expert on its face, again without the opportunity to cross-

examine said expert regarding his findings. Once again, this argument deprives the Plaintiffs ofits

legal entitlement to cross-examine a witness. Also, the Court should always remain mindful of the

fact that the two Plaintiffs have suffered damages of $75,000.00 each and their collection efforts are

simply are mechanism to re-coup monies which were loaned to a now defunct business over three (3)

years ago. It is respectfully submitted that the Plaintiffs had no way of knowing whether the

signature of Ms. Burgess was indeed forged, as she alleged, until the issue was ultimately decided by

Judge Liebowitz. To reiterate, once Judge Liebowitz rendered a decision finding that the signature

of Maura Burgess was forged, the Plaintiffs took no further collection actions against Ms. Burgess.

9

Page 10: Burgess 143 Pages

Finally, the plaintiffs, even though they are under no legal obligation to do so, sought equal

enforcement actions against all four of the defendants. Once there was a default of the promissory

note, the plaintiffs filed the Affidavits of Confession of Judgments in the County of Westchester,

Supreme Court and obtained judgments against each of the defendants. Moreover, the plaintiffs

served restraining notices attempting to restrain the bank accounts of all four defendants.

ARGUMENT

LEGAL ARGUMENT

MAURA BURGESS IS NOT ENTITLED TO RECOVER ATTORNEYS' FEES FROM THE PLAINTIFFS

Counsel fees are an incident of litigation in the absence of statute or contract. See City of

Buffalo v. Clement Co., 28 N.Y.2d 241, 262-263; Matter of Green (Potter), 51N.Y.2d627, 629-630.

In the instant case, it is undisputed that Maura Burgess does not have a contractual entitlement to the

recovery of her attorney fees.

As such, Maura Burgess can only recover her attorney fees pursuant to statute. New York

Rules of Court, Rule 22N.Y.Ct.Rules,§130-1.1 provides that attorneys' fees may be awarded in an

action resulting from frivolous conduct as defined in the statute (emphasis added). Frivolous

conduct can be defined in any of three manners: the conduct is without legal merit; or is undertaken

primarily to delay or prolong the litigation or to harass or maliciously injure another; or asserts

material factual statements that are false. See Leyy v. Carol Management Corp., 260 A.D.2d 27 (1st

Dept. 1999).

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Page 11: Burgess 143 Pages

Clearly in the instant case, the litigation was not frivolous, the plaintiffs to their detriment

relied upon executed and notarized documents and thereafter loaned One Hundred Fifty Thousand

Dollars ($150,000.00) to the company of the defendant, Maura Burgess. Among the factors we are

directed to consider is whether the conduct was continued when it became apparent or should have

been apparent that the conduct was frivolous or when such was brought to the attention of the parties

or to counsel 22 NYCRR 130-1. l(c). Given the undisputed facts, as set forth above, it is respectfully

submitted that the plaintiffs did not engage in any form of frivolous conduct. fu fact, the plaintiffs

are the victims in the instant case. The plaintiffs loaned their money to a business. The business

defaulted on the loan and now said business is defunct. The plaintiff are merely trying to re-coup

their monies from those individuals who personally guaranteed the repayment of the loan to the

business. Moreover, the court should always remember that Ms. Maura Burgess at all time relevant

hereto, was the fifty percent (50%) owner of the business.

Courts have held that "[s]anctions are retributive, in that they punish past conduct. They are

goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular

parties, but also by the bar at large. The goals include preventing the waste of judicial resources, and

deterring vexatious litigation and dilatory or malicious litigation tactics. The measure of sanctions

should be proportionate to the amount sought in the lawsuit, the culpability of the party's conduct

and prejudice to the adversary. See Vicom, fuc. v. Silverwood Development fuc., 188 A.D.2d 1057,

591N.Y.S.2d919 (41h Dept 1992)

fu !&Yy the Court gave several examples of conduct warranting sanctions. Some of the

examples are:

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Page 12: Burgess 143 Pages

An appeal that is part of a continuing effort by a plaintiff to harass or maliciously injure the defendant may be a predicate for sanctions ...

Motion practice several years after judgment, lacking legal support is a valid basis for sanctions (Minister, Elders and Deacons of Reformed Dutch Church v. 198 Broadway, 76 N.Y.2d 411, 559 N.Y.S.2d 866, 559 N.E.2d 429. Where motions are redundant to matters already decided on the merits (In Matter of Sommer, 183 A.D.2d 832, 584 N.Y.S.2d 76, Iv. denied 80 N.Y.2d 758, 589 N.Y.S.2d 308) constituting a lengthy barrage of litigation to relitigate those already decided matters (Jezzura v. Mugglin, 207 A.D.2d 645, 616 N.Y.S.2d 915, 647 N.E.2d 121), but that protracted litigation continues, with rulings ignored, despite the court's warnings to cease delaying tactics. (Solow v. Wellner, 162 Misc.2d 565, 618 N.Y.S2d 845) sanctions are appropriate to punish frivolous litigation ...

Sanctions are often tied directly to abuse of the judicial process. Gruen v. Krellenstein, supra; Bell v. New York Higher Education Assistance Corp., 76 N.Y.2d 930, 563 N.Y.S.2d 54, 564 N.E.2d 664), and, presently relevant, are especially warranted where the plaintiff remains undeterred despite the prior imposition of sanctions by the Supreme Court (Jason v. Chusid, 78 N.Y.2d 1099, 578 N.Y.S.2d 867, 586 N.E.3d 50) or where the court otherwise clearly advises a vexatious litigant of the baseless nature of the litigation (Martin­Trigona v. Capital Cities/ ABC, 145 Misc.3d 405, 546 N.Y.S.3d 910). These factors are well established throughout the record.

There in !&Yy, the Court imposed sanctions on the plaintiff in the amount to Eight Thousand

Dollars ($8,000.00) payable to the Lawyers' Fund for Client Protection. This sanction took into

consideration fairness and equity (cf. Steiner v. Bonhamer, 146 Misc.2d 10, 549 N.Y.S.2d 340)

The allegations in this case are not within the parameters warranting the imposition of

sanctions. I respectfully submit that this litigation can not be deemed "frivolous" in any sense of the

word.

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CONCLUSION

The plaintiffs respectfully request that the Court issue an Order dismissing in its entirety the

defendant, Maura Burgess' application for recovery of attorney fees.

13

TRIVELLA, FORTE & SMITH, LLP

b~~\f\k_ By: Denise A. Forte Attorneys for the Plaintiffs FRANK BAUCO and ANDREW GAMBARDELLA 1311 Mamaroneck Avenue, Suite 170 White Plains, New York 10605 Tel. No.: (914) 949 - 9075 Fax No.: (914) 949 - 4752

Page 14: Burgess 143 Pages

EXHIBIT ''A''

Page 15: Burgess 143 Pages

NEW YORK STATE SUPREME COURT COUNTY OF WESTCHESTER : PART RBL ---------------------------------------ANDREW GAMBARDELLA,

Plaintiff,

-against-

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO,

Defendants. ---------------------------------------INDEX NO. 9198/07

B E F 0 R E:

Westchester county courthouse White Plains, N.Y. 10601 MARCH 3, 2008

HON. RICHARD B. LIEBOWITZ, Justice

A P P E A RA N C E S:

TRIVELLA, FORTE & SMITH, LLP Attorneys for Plaintiff

1311 Mamaroneck Ave white Plains, NY

BY: DENISE A. FORTE, ESQ.

HYMAN & GILBERT, ESQ. Attorneys for Defendant

1843 Palmer Ave Larchmont, NY

BY: CATHERINE M. STAROPOLI ESQ.

SUSAN M. LANZETTA official court Reporter

1

Page 16: Burgess 143 Pages

s. Sergio - Direct

A. Richard.

Q. And who took care of paying the

bills associated with the business?

A. Richard.

Q. who was the signator on the

accounts?

A. I believe John Di Napoli.

Q. Did there come a time where you

borrowed money from Frank Bauco?

A. Yes.

Q. And when was that?

MS. FORTE: objection to the form

of the question as is counsel asking

about Mr. Sergio individually or the

corporation.

THE COURT: clarify.

Q. Did you personally borrow money?

A. No.

Q. From Mr. Bauco?

A. No.

54

Q. Did the business borrow money from

Mr. Bauco?

A. Yes.

Q. when was that?

Page 17: Burgess 143 Pages

s. Sergio - Direct 55

A. I don't know the dates. I don't

remember the dates. A couple of years ago.

Q. How was that money borrowed?

A. I believe it was borrowed by Rick.

I don't have a relationship with Frank Bauco.

only Rick did.

Q. can you explain why you signed a

promisory note to Mr. Bauco?

A. My understanding was Rick owed him

money previously and we used his credit card.

note?

MS. FORTE: objection.

THE COURT: sustained. I don't

want you to speculate.

Q. Why did you sign the prom1sory

A. Because Rick asked me to sign it.

Q. The promisory note was signed

prior to getting the loan?

A. Yes.

Q. When did your wife become an owner

of the business?

A. I think it was August.

Q. August of what?

A. I don't remember the dates, '0 5,

Page 18: Burgess 143 Pages

s. Sergio - Direct

maybe.

Q. Do you know when you signed the

promisory note?

A. No.

Q. I show you Plaintiff's 3 and ask

you when was that promisory note signed?

A. April 6, '06.

Q. who was that prom1sory note to?

A. Parkway south collision.

Q. who is it from?

A. Frank Bau co.

56

Q. And you said earlier the loan was

made prior to that or after that signing?

A. It's kind of like convoluted

because Rick had owed Frank money previous to

all of this happening.

Q. so you signed a promisory note for

a loan that was made prior to you coming in?

A. Prior to and I believe after also.

I believe there was a credit card used for

something.

Q. But I'm asking you money?

MS. FORTE: objection.

MS. STAROPOLI: With regard to money.

Page 19: Burgess 143 Pages

-.: ... s. Sergio - Direct 57

MS. STAROPOLI: There is a claim it's

a credit card.

THE COURT: I'll permit the

question: overruled.

Q. After you signed that did Parkway

south receive any money from Mr. Bauco?

A. I believe that Rick used the

credit card.

Q. I didn't ask you that?

MS. FORTE: objection. Money is

use of a credit card.

THE COURT: I'll permit the

question. overruled.

Q. Did any monies go into the Parkway

south account?

A. That I'm not certain of. I don't

think anything went into Parkway south

account.

THE COURT: You don't know that for

a fact?

THE WITNESS: I'm getting a little

confused.

THE COURT: start over.

Q. can you please explain to the

Page 20: Burgess 143 Pages

s. Sergio - Di re ct 58

court why you signed that prom1sory note?

money.

A. Rick told me Frank Bauco was owed

Q. owed money prior to signing that?

A. I think both.

Q. so you don't know for sure?

A. I don't know for sure.

Q. Do you know how much was

supposedly lent?

A. I don't know the exact -- this

says $75,000. I know Mr. Bauco had dealings

with Rick. I know he had dealings with Rick.

THE COURT: The issue before us is

the authenticity of your client's

signature.

MS. STAROPOLI: correct.

THE COURT: Let's drop the issue.

MS. STAROPOLI: she's going to say

she knew something it was her business

and she's involved.

THE COURT: Just a moment, either

her signature is valid or it isn't.

MS. STAROPOLI: we'll go forward with

that.

Page 21: Burgess 143 Pages

' I I I'

· r: 11eo bUPREME ·coURT OF THE STATE OF NEW i¥0~ . COUNTY OF WESTCHESTER ______ :_ ______________________________________________________ s.;t?x 1 6 2009,

FRANK BA UCO,

Plaintiff,

-against-

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO

Defendants.

------------------------------------------------------------------:x STATEOFNEWYORK . )

J• •• ~ - ~ ) SS ••

COUNTY OF WESTCHESER )

AFFIDAVIT OF FRANK BAUCO IN OPPOSITION TO MOTION TO VACATE JUDGMENT BY CONFESSION

FRANK BAU CO, being duly sworn deposes and says:

1. I 31?- the plaintiff in the above captioned matter and, am faipiliar with the facts and

circumstances in this matter. . . .

2. · I h~ve personal knowledge of the statements made herein, e:xcept where those

sta~ements are ma~e upon information a.pd belief. I make _this af:fi.9.atj.t in opposition to the.

: application by Maura Burgess for an order vacating the confession of judgment entered by the ·

Westchester County Clerk's office on May 16, 2007 against Ms. Burgess.

3. This action arose on or about April, 2006 at which time Mr. Burgess approached me

to borrow monies to be used in an auto body business in Bronx:?, New York specifically Parkway

South Collision, Inc. d/b/a S & S Collision (hereinafter referred to as "Parkway South Collision").

4. , At the time, Mr. Burgess had approachea me the business was already indebted to me

in the. amolint of Thirty Five Thousand Dollars ($35,000.00);-Jn addition, I allowed the business to

purchase Twenty Two Thousand Dollars ($22,000.00) worth of tools and automobile parts for use in

-:."'~

1

' ' • :

Page 22: Burgess 143 Pages

' I I I'

'the operation of the busmess. I also agreed to loan the business ru:i additional Eighteen Thousand

Dollars ($18,000.00) in cash.

5. I spoke with Mr. Burgess and Stephen Sergio and advised them that I would require an · ·

executed pro:i;nissory note and well as I would require all the principals and officers to exe,cute

personal confessions ofjudgmen~ for t4e full amount of the loan ..

6. These perso~ai affidavits of confession of judgment were to be a ~arantee in the

· event the business defaulted in the payment of the monies owed.

7. The promissory note and affidavits of confessions of judgment were prepared and

giv~:p._ to Mr. Burgess and Stephen Sergio to get the signatures .of the other principals.

· 8. On or about April I 0, 2006 the promissory11ote and affidavits of service were retwned . . . •.

to me executed and notarized.

9. ·. I had no reason to believe that each of the defendants did p.ot sign the respective

do_cuments given that each si~ature was notarized.

10. WJ:l,en I received the documents, the documents were not~ed. Presumably, the

notary public Mr. Tagle would have no reason to affix his .notary seal on a. document without first

verifying the identity of the person signing the document.

11. The acknowledgement signed by the notary public clearly indicates that '.'personally

came ~d appeared Maura Burgess and known to me to be the individual described ... and who

executed· the foregoing instrument and who duly acknowledged to me that she executed the same"

12. Arguably there would be no reason for the notary to misrepresent the fact that Ms.

Burgess did ~ot appear before him. · ..

13. My attorney has advised me that they have made attempts to locate Mr. Tagle and has

Page 23: Burgess 143 Pages

I 111 'I

oeen unsuccessful 'in locating him to obtain an affidavit indicating.that he did indeed witness Ms.

Burgess' signature on the affidavit and the promissory note which is the subject of this dispute.

14. Based on signed promissory note as well as the affidavits of the confession of

judgments, I loaned Parkway South Collision the total sum of Seventy Five Thousand Dollars

($75,000.00).

15. Upon inform~tion and belief as it was represented to me Ms. Burgess was a principal

in Parkway South· Collision at the time the ·note and affidavits of confession of judgment were

executed. She is also the spouse of Richard Burgess.

.. -~.-.16. As a principal in the ~msiness of Parkway South Collision, it must be presum,ed that

:ryt:s. Burgess was. aware of the financial transactj.ons attentj.ant to that business and would have been

aware of the mo~es loaned to the business including the total sum of Seventy Five Tho~andDollars

($75,000.00) infusion of money into the business of Parkway South ~ollision.

17. There is no di~pute that the monies were :used in th~ business of Parkway South

Collision.

· 18. I had been receiving monthiypayments from the business to ~epaythis obligation untii

the default on or about February, 2007.

19. Ms. Burgess cannot now state that she is not obligated to me to repay the monies

borrowed on behalf of the business. She cannot receive the benefit of the proceeds of the loan to fund

the business of Parkway South Collision without the correspondillg responsibility to ensure that the

monies are repaid to me.

20. The Court should also dismiss Ms. Burgess' application on the grounds that the Ms.

Burgess failed to comply with the procedural requirements under the. CPLR.

3

Page 24: Burgess 143 Pages

' I I I'

21. My attorney has advised me that the claims made by Ms. Burgess that the documents

underlying the judgment by confession were obtained by fraud should have been asserted in a plenary

action not on a motion to vacate the judgment by confession.

22. However, my attorney has advised me that the Court has discretion to hear the instant

application.

23. If the Court elects to entertain this motion filed by Ms. Burgess I am asking the Court

to deny the application as being without merit.

24. The motion is without merit because Ms. Burgess has failed to provide to this court

any -evidentiary proof that she di~ not execute the documents other than her statement. in the

~~companying affidavit.

25. As such, I respectfully request that the Court deny Ms. Burgess' application for an

order vacating the judgment by confession obtained by me as there:· are no ~alid grounds that would

re9-uire the Court to vacate th~ judgment. ·

4

Page 25: Burgess 143 Pages

• 1: ) J

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

--------------------------~---------------------------------------)( FRANK BAUCO,

Plaintiff,

-against-

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO

Defendants.

------------------------------------------------------------------:x

lridex Number: 9199/07

AFFIRMATION IN OPPOSITION TO APPLICATION TO VACATE JUDGMENT BY 'CONFESSION

.. · · · DENISE FORTE, an atto~ey duly licensed to practice law before the Courts of th~ State of

, , New York, affirms the truth of the following .under penalty of perjury as provided by the Civil

Practice Law and Rules (heremafter referred t~ as "C.P.L.R"):

i. I am a partner in the firm of TRIVELLA, FORTE & SMITH, LLP, attorneys for the

:Plaintiff, ;FRANK BAUCO (liereinaffer referred to a~ ''BAUCQ"). I make this affirmation in

I I

opposition to MAURA BURGESS' (hereinafter referred to as "BURGESS") application requesting ' .

that the Judgment by Confession obtained by Plaintiff agamst BURGESS personally be vacated~ A

copy of the Judgment is anne:xed hereto as E:xhibit "C" .

. 2. I am fully familiar with the allegations and fads recited herein e:xcept for those which

are· stated upon information and belief and for those facts I believe them to be true. The basis for my

lmowledge is from reviewing the files and conversations witli."the Plaintiff BA UCO and Defendant

Stephen Sergio.

3. This action arose on or about April, 2006 at which ·time all of the defendants e:xecuted

both a pro~ssory note in favor of the plaintiff as well as an affidayit of confession of judgment. A

copy of each of the promissory notes e:xecuted by each of the defendants is anne:xed hereto as Exhibit

1

Page 26: Burgess 143 Pages

" '

~ '1 ' " . . "A". A copy of the each of the affidavits in support of the judgment by confession is annexed hereto

as Exhibit "B".

4. Each defendant executed affidavits indicating that they would be personally

responsible for ¢.e amounts due to the Plaintiff.

5. · Upon reliance on the authenticity of the affidavits and the promissory notes, the

plaintiffBAUCO loaned the defendants including the defendant BURGESS the sum of Seventy Five

Thousand Dollars ($75,000.00) to be used in an auto body and repair facility lmown as Parkway

South Collision, Inc. d/b/a S & S Collision.

The total amount pf Seveney Five Thousand Dollars ($75,000.00) was boi:rowed in

, , increments.

7. First, Ric~ardBtirgess had borro'Yed Thirty Five Thousand Dollars ($35,000.00) from

Mr. Bauco.

8. In addition, Frrulk Bauco charged appr9ximately _Twenty Two Thousand ·Dollars

I I

($22,000.00) iIJ_ parts for the business on his personal credit card. T:he tools were used in the ' .

operation of th~ business. The remainhig amount was given to the busi~ess in cash. - .· ..

9. The plaintiff had no reason to doubt that the affidavits and the promissory note were

not signed by the respective parties including BURGESS.

10. Further, it is noteworthy that the signatures were notarized by notary public Walter

Tagl~. Presumably, the notary public Mr .. Tagle would have iio reason to affix his notary seal on a

document without first verifying the identify of the person signing the document.

11. The aclmowledgement signed by the notary clearly indicates that ''personally came

and appea_red Maura Burgess and known to me to be the individu":l described ... and who executed

2

Page 27: Burgess 143 Pages

• r .. • . . the foregoing instrument and who duly acknowledged to me that she executed the same" (emphasis

added)

12. Arguably there would be no reason for the notary to misrepresent the fact that

BURGESS did ~ot appear before him.

13. . This office has made attempts to locate Mr. Tagle and has been unsuccessful in

locating him to obtain an· affidavit indicating that he did indeed witness Ms. Burgess' signature on

the affidavit and promissory note which is the subject of this dispute.

14. There is currently a Freedom of In.formation Request pending before the Department

of-State, Division of Licensing to. obtain contact information for Mr. Tagle. A copy of the request is

, , annexed hereto as Exhibit "D" ..

15. Notwithstanding' the foregoing, ~s. BURGESS.has stated in her affidavit that her

. i . i

signature was forged on the documents and that she never borr6w.ed "said money".

16. Upon information and belief and from irtfonnation ~ec~ived from the plaintiff and the I I

defendant Stephen Sergio, Ms. Burgess was an officer in the business Qf Parkway South Collision ' ' '

d/6/a S & S Collision (hereinafter referred to as "Parkway.South Colli~ion").

17. Ms. Burgess along with Jeanette Sergio were the principal officers in Parkway South

Collision.

18. In addition, Maura Burgess is the spouse of Richard Burgess.

19. Richard Burgess and Stephen Sergio were partners in Parkway South Collision.

20. Presumably as an officer in Park.way South Collision she would have been aware of a

Seventy Five Thousand Dollars ($7 5, 000. 00) infusion of money into the business of Parkway South

Collision.

3

Page 28: Burgess 143 Pages

• ' • J-

21. There is no dispute that the monies were received from the plaintiff.

22. Ms. Burgess cannot now state that she is not obligated to the plaintiff to repay the

monies borrowed on behalf of the business. As such, she cannot receive the benefit of the proceeds

of the loan to fun~ the_business of Parkway South Collision without the corresp~ndingresponsibility .

to ensure th<l;t the monies are repaid. to the plaintiff.

23. Further, it is undisputed that the affidavit that was submitted in support of confession

of judgment set forth the l.lllderlying facts in sufficient detail to meet the procedural requirements of

CPLR §3218 to warrant the filing by the Westchester ~aunty Clerk's office.

24. The Court should. dismiss the instant appliCation on the grounds that the defendant

failed to· comply with the procedural requirements under the CPLR. ·

25. As set forth in case law, a claim by a defendant such as here that the affidavit and

promissory no0

te was obtained by fraud should have been asserted in a plenary action thereby

: permitting the evaluation of the.merits of the allegation~. See Engster v. Passonno, 202 A~D .2d 769

I · I .

(3rd Dept. 1994); see also Mittman v. Mittman, 33 A.D.2d 573, 305N.Y.S.2d519; Scheckterv. Ryan, ' .

16°1A.D.2d344, 345, 555 N.Y.S.2d 99.

26. On this basis alone the Court should deny the application made by BURGESS since

Ms. Burgess did not file a plenary action but chose instead to proceed via a motion to vacate the

confession of judgment.

27. If the court elects to entertain this motion filed by Ms. Burgess, the plaintiff requests

that the Court deny the motion in its entirety as be~g without merit or evidentiary proof. . .

28. Specifically, it is noteworthy that BURGESS has failed to submit any clear, positive

or satisfa~tory evidence of any fraud, misconduct or other circ~stances that would require the

4

Page 29: Burgess 143 Pages

. ' . .. judgment to be set aside. See City of Poughkeepsie v. Albano, 122 A.D .2d 14, 14-15, 504 N. Y.S.2d

183; Girvluk v. Girvluk, 30 A.D.2d 22, 23, 289 N.Y.S.2d 458, aff d 23 N.Y.2d 894, 298 N.Y.S.2d

91, 245 N.E.2d 818.

2 9. 'f4ere is no concrete evidence that the judgment was entere4 into without the consent

of the. defendant BURGESS or that Ms. Burgess did not sign the promissory note or the affidavit in

support of the judgment by confession.

30. Without more than her statement that her signature was allegedly forged the Court is

without any basis to vacate the judgment by confession obtained by the plaintiff.

h-· .. -. 31. CPLR 3218 pro~des that a judgment by-.confession may be entered ~thout the

, , necessity- of an action upon "an affidavit executed by tp.e defendant" which must contain, inter alia,

a concise statement of the facts out of which the debt arose and a showing that the sum confessed is

justly ciue or t~ become due."

32. It has been held .that a concise statement of the facts, made under oath is ~equired so

. that any inter~sted third party may investigate the matter and ascertaip whether the .confession of

judgment was ~ccurate and bona fide. The affidavit mu~t separately'stat~ the amount of the loans; the

dates upon which they were made, the amount of the principal and the amount of the interest. See

Woodv. Mitchell, 117N.Y. 439.

33. It is undisputed that these procedm:al requirements were met in the instant case.

34. There was a statement of the facts underlying the request for the judgment by

confession. The affidavit references a promissory note that was signed by Ms. Burgess.

35. The affidavit stated with specificity the amount lo~ed to the defendants, the date the

loan was made and the interest rate on the loan.

5

Page 30: Burgess 143 Pages

o I .... 36. Since the procedural requirements under CPLR 3818 were met the judgment obtained

by confession is valid.

37. As such, the plaintiff requests that the Court deny BURGESS' application for an

order vacating tht'.ju~gment by confession obtained by the plaintiff as there ar~ no valid grounds that

would require the Court to vacate the judgment.

[jl]0U~~lA:h-. Denise Forte

Duly affirmed on August 13, 2007 a- •' ., ••

-'

.. · ..

6

Page 31: Burgess 143 Pages

•I • );.

AFFIDAVIT OF SERVICE BY MAIL

STATEOFNEWYORK ) )ss.:

COUNTY OF WESTCUESTER )

TINA TRUIANO, being duly sworn, deposes and says:

That I am not a party to this action; am over 18 years of age and reside in Westchester County, New York; that on the 13th day of August, 20.07, I served the within AFFIDAVIT OF FRANK BAUCO, AFFIDAVIT OF STEPHEN SERGIO AND

.. AFFIRMATION OF DENISE FORTE IN OPPOSITION TO APPLICATION TO VACAT~ JUDGMENT BY CONFESSION upon:

•:

Maura Burgess 40 Wickford Road

New Rochelle, New York 10801

and by m Federal Express Priority Ove~ght a true copy of the same to the offices listed above.

RAQUELA. WILLIAMS Notary Public, State ofNewYork No. 02WI6o72574 Qualified in Westchester County Commission Expires April 8, 2010

' ' :2 ~·~ , Tina Troiano

Page 32: Burgess 143 Pages

.. . · -. .. _:- --.

EXHIBIT A

Page 33: Burgess 143 Pages

....

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------x

- ANDREW GAMBARDELLA, Index No. 9198/2007

Plaintiff,

- against -

Hon. Matthew F. Coppolla --.~: ~ ~Dal Hearing Officer

MAURA BURGESS, RICHARD BURGESS, JEANETTE. SERGIO, and STEPHEN SERGIO,

Defendants. ---------------------------------------~x SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

~---------------------------------------x

...

FRANK BAUCO, Index No. 9199/2007

Plaintiff,

- against -

Hon. Matthew F. Coppola Judicial Hearing Officer

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO, and STEPHEN SERGIO,

Defendants. ----------------------------------------x

Closing Statement and Post Trial Memorandum of Law of

Defendant Maura Burgess

HYMAN & GILBERT 1843 PALMER AVENUE

LARCHMONT, N.Y. 10538

Page 34: Burgess 143 Pages

I ..

'

"'

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

------------------------------------------------------------------------)( ANDREW GAMBARDELLA,

Plaintiff,

-against-

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO, and STEPHEN SERGIO,

Defendants.

------------------------------------------------------------------------)( SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

------------------------------------------------------------------------)( FRANK BAUCO,

Plaintiff,

-against-

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO, and STEPHEN SERGIO,

Defendants.

------------------------------------------------------------------------)(

Index No. 9198/2007

Hon. Matthew F. Coppola Judicial Hearing Officer

Index No. 9199/2007

Hon. Matthew F. Coppola Judicial Hearing Officer

CLOSING STATEMENT AND POST TRIAL MEMORANDUM OF LAW OF DEFENDANT MAURA BURGESS

Page 35: Burgess 143 Pages

INTRODUCTION

The Defendant, Maura Burgess seeks this court's determination that attorneys fees be

I • awarded to her based upon the Plaintiffs' frivolous and egregious actions with regard to certain

promissory notes and confessions of judgment that were forged to the Plaintiffs benefit. In

addition, attorney's fees should be awarded to the Defendant because plaintiff failed to provide

any proof during the previous hearing or this hearing that said monies were ever loaned to the

business. Furthermore, attorney's fees should be awarded based on the fact that the loan from the

Plaintiffs was a scam in that these astute businessmen did not speak to the Defendant Maura

Burgess with regard to said loans, and that one Plaintiff in fact never made said loan, but falsely

claims to have done so in order for the other Plaintiff to lend said monies, which in turn were

then given to an associate of Mr. Bauco, his family members, and various other businesses

owned by Mr. Bauco.

The trial of this matter was heard by this Court on March 10, 2009 and July 15, 2009.

Witnesses presented by the Defendant included herself, Mr. Gambardella, and Mr. Bauco.

One witness presented by the Plaintiffs was Plaintiff Frank Bauco.

I ~ !

2

Page 36: Burgess 143 Pages

BACKGROUND

On or about April ih, 2006, although the document is dated April 6, 2006, someone

appeared before the Notary Betty Rivera in the Bronx, New York pretended to be Ms. Burgess

and forged the Defendant's signature after providing false identification, all unbeknownst to the

Defendant Ms. Maura Burgess. Also, on April 18 2006, someone appeared before the Notary

Walter Tagle in Mt. Vernon, New York and forged Ms. Burgess' signature. On July 12, 2007,

the Defendant Maura Burgess discovered that her bank accounts along with the bank accounts of

her father, to which she is a signatory, had been frozen. Ms. Burgess immediately went to the

New Rochelle Police Department. After reporting the crime of forgery to the New Rochelle

Police Department, she was advised by her bank that she had to file papers with the court in order

to have the monies released. On July 12, 2007, Ms. Burgess filed, pro se, with this court an

Order to Show Cause wherein she requested that the "levy on all of her bank accounts be lifted

and the money in said accounts be released". In addition, she requested that the Judgment of

Confession and Affidavit of Confession be set aside as her signatures were forged on said

documents as well as on the alleged loan documents.

On or about August 13, 2007, Ms. Forte, Plaintiffs' counsel, filed Opposition to the

Motion to Vacate the Judgment of Confession. On or about September 7, 2007, Defendant

Maura Burgess, who had retained then counsel, filed a Reply Affidavit. On or about September

19, 2007, Ms. Forte filed a Sur-Reply and on October 18, 2007, Defendant then filed an Affidavit

... in Further Support of her Motion to Vacate.

3

Page 37: Burgess 143 Pages

On October 22, 2007, Judge Joan B. Lefkowitz rendered a decision wherein she stated in

her Order that "upon the foregoing papers it is ORDERED that the motion is granted to the

extent of directing a hearing regarding the validity of defendant Maura Burgess' signature on the

affidavits for judgment by confession." In addition the Order stated that "if it is determined that

the signature was forged, the motions are granted .... "

On or about October 29, 2007, a Note oflssue and Certificate of Readiness for trial were

filed with the Westchester Supreme County Clerk.

On March 3, 2008, counsel and the parties appeared before the Honorable Richard B.

Liebowitz, wherein a trial was held. After hearing testimony from John F. Breslin, a forensic

document examiner, and a retired New York City Police Department Detective with 33 years of

experience as a document examiner, Detective Daniel Benge, a New Rochelle Police Department

Detective who investigated the case, Ms. Betty Rivera, the notary who allegedly took Maura

Burgess' signature on the Promissory Note and Confession of Judgment who was unable to

identify the Defendant as the person who executed the documents, co-defendant Steven Sergio

who testified that he did not sign the documents in question before a notary, and that he did not

see Maura Burgess sign them, and lastly Maura Burgess, who testified that she did not sign the

documents, the court concluded that the signatures purported to be that of Maura Burgess on the

Promissory Notes or the Affidavits for Confession of Judgment were forged. (Judge Liebowitz

Order of May 30, 2008, attached hereto as Exhibit "1 ".) Furthermore, Judge Liebowitz disagreed

with Ms. Forte's last minute claim and clearly stated that "Plaintiffs reliance on the theory that

Rick Burgess was authorized to sign the documents on behalf of Maura Burgess is misplaced.

4

Page 38: Burgess 143 Pages

Here the party who executed the promissory notes and the affidavits of confession of judgments

was a woman who appeared before a notary public and held herself out to be Maura Burgess."

(Refer to Judge Liebowitz's Order of May 30, 2009.) Ms. Forte, in a last ditch effort attempt to

pull a rabbit out of a hat by stating that Mr. Burgess had apparent authority thereby incurring

additional attorney's fees on behalf of Ms. Burgess as this issue, which was not a part of Judge

Lefkowitz's decision, needed to be researched and replied to in Defendant's post-memorandum

of law. In addition, Judge Liebowitz referred the issue of any attorney's fees to be awarded

Maura Burgess to the Honorable Joan B. Lefkowitz, the original judge assigned to this case.

(Refer to Exhibit "l "). According to Judge Liebowitz's decision the parties then appeared before

the Honorable Judge Lefkowitz, who then recused herself as the Judge with regard to this matter

because our firm was representing her father's estate. As a result this matter was assigned to

Your Honor.

5

Page 39: Burgess 143 Pages

ARGUMENT

DEFENDANT SHOULD BE A WARDED COUNSEL FEES BASED UPON THE PLAINTIFFS' FRIVIOLOUS ACTIONS

Other than by agreement or statute, the only other way in which to obtain attorneys' fees

is pursuant to New York Rules of Court, Rule 130 N.Y.Ct.Rules, §130-1.1. The rule clearly

states that:

(a) the Court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys' fees, resulting from frivolous conduct as defined in this Part.

(c) For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is an undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

In making a determination as to whether conduct is "frivolous", the court considers,

among other things, "the circumstances under which the conduct took place, including the time

available for investigating the legal and factual basis of the conduct, and whether or not the

conduct was continued when its lack of legal or factual basis was apparent, should have been

apparent, or was brought to the attention of counsel or the party." ( See 22 NY CRR 13 0-1.1 [3].)

6

Page 40: Burgess 143 Pages

Simply put this entire matter was frivolous from the day the promissory notes and

affidavit of confessions were signed, up and until this trial ended on July 15, 2009 for the

following reasons:

You have two astute businessmen who in April of 2006 allegedly lent approximately

$75,000 each to a convicted felon who was indicted on multiple RICO charges and another

person who was charged by one of the plaintiffs for identity theft.

Furthermore, Mr. Bauco who, upon information and belief, did not loan said monies to

the Defendants has contradicted himself repeatedly in connection with the promissory notes, his

affidavits, his attorney's affirmation, and his testimony before this court, whereby every action

and conduct by the Plaintiffs in connection with these alleged loans are frivolous.

Mr. Bauco has clearly stated in his sur-reply affidavit of September 19, 2007 (refer to

Defendant's Trial Exhibit "C", page 107 of the March 10, 2009 transcript attached hereto as

Exhibit "2" and pages 95, 96 of the July 15, 2009 transcript attached hereto as Exhibit "3") that

the loan was given in three parts. Firstly approximately $13,000.00 was allegedly loaned in cash

to Mr. Burgess, but Mr. Bauco does not provide proof of same, nor has he in fact lent these

funds. Furthermore, if it was a personal loan to Mr. Burgess, why would Mrs. Burgess be held

responsible for same? Then $35,000.00 was allegedly comprised of several loans and payment

of credit card bills on behalf of Mr. Burgess, and the business. This alleged loan occurred prior

to the promissory notes execution. However, he failed to provide proof of said loan throughout

7

Page 41: Burgess 143 Pages

.._

the prior proceeding but attempted at the last minute during this proceeding to provide checks

that were made payable to individuals, and not the business and were dated September of 2005,

seven (7) month's prior to the alleged execution of the promissory notes and affidavit of

confession, even though Ms. Burgess repeatedly stated since the filing of her Order to Show

Cause that Mr. Bauco never provided any proof of said loans. Furthermore, Ms. Burgess was

not aware of any credit card debt that Mr. Burgess had nor was she even aware that Mr. Burgess

had a credit card. Yet once again, why would Ms. Burgess be responsible for loans made to Mr.

Burgess individually, more specifically why would she be responsible for loans made prior to the

execution of a promissory note when she was never advised of same by Mr. Bauco. During Mr.

Bauco's testimony on March 10, 2009 (refer to page 107 of the court transcript), Mr. Bauco

states that $35,000 was given to Mrs. Burgess, but then clearly states throughout his testimony

that he had no contact with Mrs. Burgess nor did he ever discuss the loan with her (refer to pages

80, 88, 89, and 90 of the March 10, 2009 trial transcript). So then who in fact got the money? No

one, because there was no loan made by Mr. Bauco and to this day he has not provided any proof

of same except for his American Express Credit Card statement evidencing approximately

$27,000 in charges that were paid for in full. Lastly, Mr. Bauco states that in addition to the

above mentioned monies, which total $48,000, he allowed the Defendant Richard Burgess to

charge on his personal American Express on behalf of the business the sum of $27,000 and

provided proof of same (Refer to Defendant's Trial Exhibit "C"). There is no dispute that

approximately $27,000 was charged by Mr. Burgess to Mr. Bauco's credit card, but these monies

have been paid back in full to Mr. Bauco's business, business associates, and family members as

set forth in Defendant's Trial Exhibit "A" and during the trial on March 10, 2009, when Mr .

Bauco admits that various monies were given to him, family members, business associates, and

8

Page 42: Burgess 143 Pages

• various other businesses he owns (refer to page 171 of the March 10, 2009 transcript). Mr.

Bauco continues on to state during his testimony that at the time the promissory notes were

signed that less than $75,000 was owed by the business. (Refer to page 171 of the March 10,

2009 transcript.) In fact, the charges in the sum of $27,000 were not incurred totally until August

of 2006 some five (5) months after the monies had been allegedly lent. This only supports

Defendant's allegation that Mr. Bauco never made said loan, that the documentation was bogus

and false, and that the pursuit of this matter against Ms. Burgess was frivolous because it is

completely without merit in law, and cannot be supported by a reasonable argument for an

extension, modification or reversal of existing law; it was undertaken primarily to delay or

prolong the resolution of the litigation, or to harass or maliciously injure another; and it asserts

material factual statements that are false.

In further support that Mr. Bauco's pursuit was frivolous as against Ms. Burgess is the

fact that in his Affidavit in Opposition dated August 13, 2007 paragraph 8 (refer to Defendant's

Trial Exhibit "D") and during his testimony Mr. Bauco clearly states (refer to pages 109 and 110

of the July 15, 2009 trial transcript) that "on or about April 10, 2006 a promissory note and

affidavit of confession were returned to me and executed and notarized." This statement is false.

It appears from Mr. Bauco's affidavit that only one of the four promissory notes and affidavit of

confessions of judgment was returned signed and notarized. This raises an additional question,

which of the promissory notes was returned and what happened to the others? In addition and

more importantly, how could Mr. Bauco get the promissory note executed and notarized returned

to him on April 10, 2006 when they were in fact not notarized until April 18, 2006? Mr. Bauco

and his attorney when they prepared his affidavit in opposition to Ms. Burgess' Order to Show

9

Page 43: Burgess 143 Pages

Cause were in possession of the Promissory Notes and Confessions and could have easily

verified the dates, unless the documents were bogus or they were in fact returned without the

parties signatures being notarized, which means that the promissory notes were null and void,

thereby proving that Mr. Bauco's pursuit of this matter against Ms. Burgess was frivolous and in

bad faith. In addition and in further support of Defendant's argument is the fact that the

promissory notes were not returned notarized as stated by Mr. Stephen Sergio during the trial

before Judge Liebowitz wherein he testify that he did not sign the documents in question before a

notary and that he did not see Mrs. Burgess sign them. Refer to the May 30, 2008 Order of Judge

Liebowitz.

In further support of the argument that this matter was frivolous and attorney fees should

be awarded to Ms. Burgess is the fact that fyfs. Burgess and her counsel were repeatedly advised

by Mr. Burgess and Mr. Sergio that Mr. Bauco in fact did not lend the money. Mr. Bauco

pretended to have lent the money so that his cousin Mr. Gambardella would lend the money to

the business, because Mr. Gambardella was weary to lend this amount of money to a business

and people he knew nothing about. Once Mr. Bauco convinced his cousin to lend the money,

Mr. Burgess and Mr. Sergio agreed to give Mr. Bauco an alleged finder's fee of $20,000 to one

of Mr. Bauco's business interests WeBuild, which is further supported by the check and the fact

that Mr. Bauco testified that WeBuild charged various expenses on his American Express credit

card. (Refer to pages 127-130 of the March 10, 2009 transcript.)

10

Page 44: Burgess 143 Pages

Furthermore, the promissory note, which was prepared by the Plaintiffs counsel clearly

states that the signer of the promissory note is only responsible for money lent on said date,

"April _, 2006", but Mr. Bauco has clearly stated during his testimony that all of the money

but approximately $27,000 was lent before April of 2006 and the $27,000 was lent after. (Refer

to the March 10, 2009 transcript and the July 15, 2009 transcript and specifically pages 109

through 116). Furthermore, even Ms. Forte's affirmation attached to Plaintiffs affidavit of

August 13, 2007 clearly states that "upon the reliance of the affidavit of confession and the

promissory note the Plaintiff Bauco loaned the Defendant ... including the Defendant Burgess

the sum of $75,000 to be used in the auto body repair facility known as Parkway South Inc. d/b/a

S & S Collision. (Refer to Defendant's Exhibit "D" and July 15, 2009 transcript page 112.) This

being said Mr. Bauco testified and set forth in his affidavit of September 19, 2007 and clearly

stated during this trial (refer to Exhibit "C", page 107 of the March 10, 2009 transcript and pages

95, 96 of the July 15, 2009 transcript attached hereto) that the loan was given in three parts. First

approximately $13,000.00 was allegedly loaned in cash to Mr. Burgess, then $35,000.00 was

allegedly comprised of several loans and payment of credit card bills on behalf of Mr. Burgess

and the business prior to the promissory notes execution, and $27,000 was charged on Mr.

Bauco's American Express card after the execution of the promissory note up and until August of

2006. Neither Mr. Bauco nor his attorney should have pursued this matter as to Ms. Burgess

because the documents were false as Mr. Bauco had allegedly lent the money prior to the signing

of the alleged promissory notes and affidavits of confession and said alleged monies were not all

loaned to the business based upon Mr. Bauco's own testimony and affidavits. This once again

supports our contention that Mr. Bauco's conduct in pursuing this matter as against Ms. Burgess

is frivolous.

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Also important to note is the fact that Mr. Bauco went to the New Rochelle Police

Department and filed a complaint against Mr. Burgess for identity theft on March 16, 2006. Mr.

Bauco filed a complaint against Mr. Burgess stating that Mr. Burgess was not given permission

or authority to use Mr. Bauco's Chase Bank Master Card. Mr. Burgess was arrested. It is worth

noting why a man would agree to loan $75,000 to someone who he had previously stated stole

his identity. How can anyone trust a man who allegedly stole one's identity with legal papers,

and not question the other individuals involved? You cannot unless there was no loan, which

there in fact was no loan, by Mr. Bauco. Mr. Gambardella was duped by his cousin and made a

bad business investment and should have spoken with all of the parties involved, as he did not

know any of them individually.

Ms. Burgess, after finding out her accounts were frozen, also went to the New Rochelle

Police Department and filed forgery charges in connection with the promissory notes and

confessions of judgments. The New Rochelle Police Department, specifically Detective Benge

and his partner, questioned the notary Betty Rivera, who recalled notarizing the documents in

question and specifically Ms. Burgess. Detective Benge asked Ms. Rivera if she was shown a

picture of Ms. Burgess would she be able to identify her and Ms. Rivera advised Detective Benge

that she could. Detective Benge returned to Ms. Rivera's place of business and showed her a

picture of Ms. Burgess, which Ms. Rivera advised Detective Benge she was not in said picture.

Ms. Rivera then appeared at the New Rochelle Police Department and submitted an incident

report verifying her statements to the Police. After speaking with Detective Benge and finding

out that Ms. Burgess was not the person who appeared before her and/or signed the documents in

question I immediately contacted Ms. Forte and advised her of what took place and the police

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department's outcome. I also gave Ms. Forte Detective Benge's phone number, and informed her

to speak to him with regard to this matter, which, upon information and belief she did. Ms. Forte

advised me that her clients refused to back down because they believe that if they were going to

collect on the alleged loan the only person they would be able to do so was from Ms. Burgess as

she was going through a divorce and thought she would have to either sell her home or buy her

husband out of the marital residence thereby needing to refinance.

That being said, and due to the Plaintiffs' unwillingness to resolve this matter, Defendant

d no other choice but to hire a hand writing expert to support our claim that the documents were

forged, which we did. We hired Mr. Breslin who concluded in December of 2007, after

examining all of the documents in question, and additional documents he requested from Ms.

Burgess, that the signature on said documents was unequivocally forged. Upon receipt of the

report, I immediately forwarded a copy to Ms. Forte. Shortly thereafter I called Ms. Forte and

once again asked her to withdraw the promissory notes and confessions of judgment as to my

client. Based upon Ms. Forte's suggestion that matter could not be resolved, and we had not

other choice but to go forward with the trial in question.

Throughout this attorney fee hearing Ms. Forte has stated that a reason why her clients

did not settle is because they were entitled to question Ms. Rivera, Mr. Breslin, and Detective

Benge, but that is merely an excuse. Plaintiffs' counsel had ample opportunity and time to

depose Ms. Rivera, Mr. Breslin, the handwriting expert, and Detective Benge, after all of the

documentation was submitted, but instead choose to go forward with this frivolous litigation

against Ms. Burgess in hopes that Ms. Burgess, who does not come close to the Plaintiffs

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financially, would back down because she did not have the funds to go forward. The

continuation of this matter after the report of Detective Benge and Mr. Breslin were forwarded to

Ms. Forte was undertaken primarily to delay or prolong the resolution of the litigation in hopes of

harassing or maliciously injuring Ms. Burgess financially as the Plaintiff was aware of her

financial condition based upon their testimony on July 15, 2009.

Interesting to note WeBuild, to which Mr. Bauco allegedly lent his credit card in order to

charge WeBuild business expenses, currently is the Defendant in litigation in Westchester

County Supreme Court Index No. 00591/2007 in which Ms. Betty Rivera, the same notary used

in this matter notarized a signature for a document on behalf of WeBuild on September 30, 2004,

an alleged forged signature. Coincidence or not?

After filing the within motions and discussing this matter with the Plaintiffs' counsel on

several occasions, providing her with copies of the police report, and the handwriting expert's

report, I repeatedly requested that the Plaintiffs release Ms. Burgess of liability, and release her

funds. I asked Plaintiffs' counsel why her clients were determined to continue against my client

even after we had provided proof that her signature was forged, and her answer was they were

aware that she was going through a divorce and that she might have to either sell her house or

refinance, and they would then be able to collect the monies allegedly due them. I advised

Plaintiffs' counsel that that would not be happening and their response was that the Plaintiffs

knew that if they would be able to collect from anyone, it would be from Ms. Burgess.

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No matter how you look at this matter, the Plaintiffs continued forward against the

Defendant Maura Burgess even though Mr. Gambardella never spoke with Ms. Burgess in any

context, and Mr. Bauco knew she took care of her two young children, worked in her father's

hardware store part-time, and also was a real estate agent. In addition, the Plaintiffs continued to

pursue this matter against Ms. Burgess even after the police report was provided evidencing that

Ms. Burgess did not appear before the Notary Public and the handwriting expert's report, which

states unequivocally that her signature was forged. The only reason the Plaintiffs have continued

against Ms. Burgess is because they had frozen her accounts, two of which belong to her father,

and there were funds available in said accounts. The Plaintiffs have continued against the

Defendant Maura Burgess for the sole purpose of harassing and intimidating the Defendant

Maura Burgess so as not to go forward with this matter. The monies frozen that belong to Ms

Burgess, which approximate $20,000 is all the money that she has, which is very difficult when

she is a single mom raising two children with no financial assistance from the children's father.

Conduct is considered frivolous in a case if it asserts material factual statements that are

false. Mr. Bauco never lent the monies in question with the exception to the credit card expenses

which were paid in full, and has not provided one iota of proof other than the credit card

expenses totaling approximately $27,000, which is a far reach from $75,000.00. Mr. Bauco also

has testified that the alleged monies were given prior to the execution of the promissory notes

and some of the monies were given after, but if one is to review the affirmation of Ms. Forte

specifically paragraph 5 of Defendant's Trial Exhibit "D" and attached to Mr. Bauco's affidavit

of August 13, 2007 it clearly states that "upon the reliance of the affidavit and the promissory

note the Plaintiff Bauco loaned the Defendants including the Defendant Burgess the sum of

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$75,000 to be used in the auto body repair facility known as Parkway South Inc. d/b/a S & S

Collision. (Refer to transcript dated July 15, 2009 page 112). This statement of Ms. Forte's,

which was submitted attached to Mr. Bauco's and Mr. Gambardella's affidavits, is contrary to

everything that Mr. Bauco has testified to and set forth in his affidavits. As set forth above, Mr.

Bauco has loaned Mr. Burgess individually monies to pay off his own personal credit cards, not

just the business, and most of the monies with the exception of the approximate $27,000 that

were charged on Mr. Bauco's American Express were lent prior to the execution of the

promissory notes. Well what is it? It is neither, because Mr. Bauco never made the loan. It is a

bogus loan as is Mr. Bauco's testimony.

In making a determination as to whether conduct is "frivolous", the court considers,

among other things, "the circumstances under which the conduct took place, including the time

available for investigating the legal and factual basis of the conduct, and whether or not the

conduct was continued when its lack of legal or factual basis was apparent, should have been

apparent, or was brought to the attention of counsel or the party." (See 22 NYCRR 130-1.1 (31.)

The Plaintiffs continued with this litigation when the lack of legal or factual basis became

apparent and when it was specifically brought to the attention of Plaintiffs' counsel on numerous

occasions, after Detective Benge showed Ms. Rivera the picture of the Plaintiff and she could not

identify her, and then when Mr. Breslin submitted his report that Ms. Burgess' signature was

unequivocally forged. Furthermore, Ms. Forte and her clients had ample time to investigate Ms.

Burgess' legal and factual claims, especially when most of the work had been done for her. All --

Ms. Forte had to do is question Ms. Rivera, Mr. Breslin, and Detective Benge, but instead she

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refused to, in the hope that my client, who does not have a dime to her name, would simply give

m.

Ms. Forte at the last minute also requested that the Judge Liebowitz deal with the issue of

"apparent authority" even though this was not an issue discussed or set forth in Judge

Lefkowitz's decision of October 22, 2007, which clearly stated that a hearing is required

regarding the validity of defendant Maura Burgess' signature on the affidavits for judgment by

confession and that if it is determined that the signature was forged, Ms. Burgess' motions are

granted .... " Ms. Forte was reaching for straws, because all of the evidence, the report of Mr.

Breslin, the report of Detective Benge, the report of Ms. Rivera, as well as Mr. Sergio stating that

he did not sign in front of a notary and he did not see Ms. Burgess sign the documents could lead

to no other conclusion, but even her straws were far reaching because anyone who knows the law

about apparent authority knows that it was inapplicable in this situation based solely on the

statements of the Plaintiffs and Ms. Forte.

Apparent authority law clearly states, "in order to create apparent authority, there must be

words or conduct of the principal, communicated to the third partv, which give rise to an

appearance and belief that an agent possesses authority to act on behalf of the principal, the third

party must rely on the appearance of the authority based upon some misleading words or conduct

of the principal. not the agent. to the third partv." (see Hallock v. State ofNew York, 64 N.Y.2d

224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178; Ford v. Unity Hosp., 32 N.Y.2d 464, 473, 346

N.Y.S.2d 238, 299 N.E.2d 659; King v. Mitchell, 819 N.Y.S.2d 169; Searle v. Cayuga Med. Ctr.

at Ithaca, 28 A.D.3d 834, 836, 813 N.Y.S.2d 552; Dragotta v. Southampton Hosp.,39 A.D.3d

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697; Ben-Reuven v. Kidder, Peabody & Co., Inc., 241 AD.2d 504; Standard Funding Corp. v.

Lewitt, 89 NY.2d 546, 656 NYS.2d 188.) (Emphasis added.)

In addition, "an agent cannot by his own acts imbue himself with apparent authority to

bind the principal." (see Ford v. Unity Hospital, 32 NY.2d 464, 346 NYS.2d 238, 299 NE.2d

659; Shaw Temple A.M.E Zion Church v. Mt. Vernon Fire Insurance Company, 199 AD.2d 374

(2°d Dept. 1993); 150 Beach 1201h Street, Inc. v. Washington Brooklyn Ltd. Partnership, 833

NYS.2d 667 (2°d Dept., 2007); Lindenbaum v. Albany Post Property Associates, Inc., 297 AD.2d

661, 747 NYS.2d 118; Restatement Agency 2d, §27.)

Most importantly, "in order to succeed against a principal on a claim of apparent agency,

the plaintiff must establish, inter alia, the apparent agent's negligence." (See Friedler v.

Palyompis, 845 NYS.2d 347; Ashkenazi v. Hertz Rent A Car, 18 A.D.3d 584, 586, 795 N.Y.S.2d

624; see Bank v. Rebold, 69 A.D.2d 481, 493-494, 419 N.Y.S.2d 135; Restatement (Second) on

Agency §267.)

Mr. Gambardella (March 10, 2009 transcript) and Mr. Bauco (March 10, 2009 and July

15, 2009) testified they never met with nor spoke to Maura Burgess with regard to the loan or the

business. In addition, Mr. Bauco only spoke with Ms. Burgess regarding a real estate question

and never spoke with her regarding a loan or the auto body business. Accordingly, it was

impossible for the Defendant to create apparent authority to another person. Ms. Burgess would

have had to "through words or conduct" communicate to Mr. Gambardella and to Mr. Bauco that

her agent, her then husband possessed authority to act on her behalf as the principal of the

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business, and this by their very own testimony, never took place. Furthermore, there is no way

that Ms. Burgess could have given Mr. Burgess, her former husband, apparent authority on an

individual basis whereby permitting him to sign her name to a personal guaranty.

In addition, if Ms. Burgess had given authority to an agent, that person would have signed

as her agent not with her signature alone. More importantly if Ms. Burgess did give authority to

a person, why did someone have to pretend to be her and appear before a notary public. As with

a power of attorney, that person would have signed as her agent or attorney in fact; they would

not have had to forge her signature.

Plaintiff did not provide one iota of evidence that Ms. Burgess had given any third party

authority to forge her signature with regard to the Promissory Note for the business, or her

personal guaranty. As was set forth by the testimony, Ms. Burgess was never present at the

business, not involved with this deal, nor aware of what took place. Whether or not that was the

case with the remainder of the Defendants, that is a question for the other Defendants. Even Mr.

Sergio testified that Maura Burgess had no involvement with this matter!

Ms. Burgess did not authorize any party to enter into this arrangement with the Plaintiff

nor to forge her signature to the Promissory Note or the Affidavit of Confession of Judgment. In

addition, Mr. Bauco, Mr. Gambardella's cousin was aware that Ms. Burgess worked for her

father at a hardware store and also was a real estate agent. Mr. Bauco knew clearly that Ms.

Burgess had no involvement with the business or the matter before this court. More importantly,

Mr. Bauco has pressed charges against one of the other Defendants for forgery, and there is a

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business, which upon information and belief, Mr. Bauco is involved with that is being sued for

forgery of both legal documents and a check. This is all very coincidental. Mr. Gambardella ,. I

and Mr. Bauco are astute businessmen who were aware that Ms. Burgess had nothing to do with I

I -I

the business. The Plaintiffs will not back down against Ms. Burgess because they believe that

she is the only person from whom they could possibly collect any money, irrespective of whether

or not she is herself a victim.

Even presenting the argument of apparent authority is frivolous because it was completely

without merit in law and could not be supported by a reasonable argument ... because as Mr.

Bauco and Mr. Gambardella have stated from day one of this matter, neither party ever spoke to

or with Ms. Burgess in connection with the business or the loan. They continued forward with

this litigation because they wanted to delay or prolong the resolution of the litigation and/or to

harass and injure Ms. Burgess in hopes that she would go away. Lastly, the Plaintiff Mr. Bauco

has asserted material factual statements that are false, including, but not limited to, the amount

allegedly loaned, who the monies were loaned to (even at the last minute he attempted to state

that monies were loan to the Sergio's even though his papers specifically state monies were lent

to Mr. Burgess and the business. Never did he state in his affidavits or affirmation or in Mr.

Sergio's testimony that monies were lent to Mr. Sergio and his wife approximately seven (7)

months prior (and were part of the promissory note), when the monies were loaned, how the

monies were loaned, and the amounts repaid. Mr. Bauco does not have one shred of evidence

nor has he provided any evidence other than a credit card statement for purchases, which totaled ....

approximately $27,000, and had not received permission to do so from Ms. Burgess to incur on

-- behalf of the business. This is a loan gone badly for one party who was looking to collect his

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loss from anyone, even the wrong person. Mr. Gambardella got involved with the wrong people

and was looking to make Ms. Burgess pay, when she was never involved with the matter even

though she was the owner on paper of the business. Mr. Bauco never made the loan and pursued

this to save face with his cousin.

CONCLUSION

For the reasons stated in Defendant's Post Trial Memorandum of Law, this court should

rule in favor of the Defendant Maura Burgess and against the Plaintiffs by awarding Ms. Burgess

attorney's fees in excess of $61,748.81 based upon the bills previously submitted to the court

(refer to Defendant's Exhibit "B" and pages 23 and 24 of the transcript dated July 15, 2009) plus

additional fees for our last day in court and the preparation of this Closing Statement and Post

Trial Memorandum of Law.

Dated: Larchmont, New York August If 2009

Of Counsel: Catherine M. Staropoli

21

Respectfully submitted,

yman & Gilbert Attorneys for Defendant Maura Burgess 1843 Palmer A venue Larchmont, NY 10538

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1

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·-SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -------------------------------------------------------------------------)(

FRANK BAUCO,

Plaintiff,

- against -

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO,

Defendants.

--------------------------------~----------------------------------------)(

-------------------------------------------------------------------------)(

ANDREW GAMBARDELLA,

Plaintiff,

- against -

MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO,

Defendants. ..

-------------------------------------------------------------------------)(

LIEBOWITZ, J.

Index# 9199/2007

FILED AND

ENTERED ON J:,nl' d. 20 o-5'

WESTCHESTER COUNlY CLERK

Index# 9198/2007

This matter was referred to this Court for a framed issue hearing to determine

whether certain documents evidencing a personal indebtedness by defendant Maura Burgess

("M.B. ") in favor 0f plaintiffs Frank Bauco and Andrew Gambardella were the product of a

forgery. M.B. also asks for an award of attorney's fees in view of plaintiffs' egregious behavior

in prosecuting this matter.

Page 57: Burgess 143 Pages

The framed issue hearing in this matter was held before this Court on March 3,

2008. The evidence presented at the hearing consisted of testimony by a total of five (5)

witnesses called on behalf of M.B., as well as documentary evidence introduced by her. The

\

,Court also received post-trial submissions from plaintiffs and M.B., and the matter was fully

submitted on April 4, 2008.

Factually, defendant M.B. and her ex-husband Richard Burgess ("R.B"), along

with Jeanette Sergis and Richard Sergis, operated a collision repair shop, Parkway South

Collision Inc. d/b/a S&S Collision. M.B. left the active management of the business entirely to

R.B. At some point, R.B. entered into two agreements, on behalf of the corporation, with Frank

Bauco and Andrew Gambardella, to borrow the sum of $150,000. In due course, R.B. returned

executed and notarized promissory notes and affidavits for confession of judgment which

demonstrated execution of same by M.B. After the loans were defaulted upon, plaintiffs

proceeded against M.B., entered judgment against her and restrained her bank accounts. She

now seeks to void the judgment.

•. At the hearing held in this matter, the Court heard the testimony of John F.

Breslin, a forensic document examiner, and a retired New York City Police Department

Detective with 33 years of experience as a document examiner. The essence of Mr. Breslin's

testimony was that in his opinion, the signatures of M.B. contained in the promissory notes and

affidavits for confession of judgment were not that ofM.B. This opinion was echoed by

Detective Daniel Benge (a New Rochelle Detective who investigated the case). Ms. Betty

Rivera, the notary who allegedly took M.B. 's signature on the aforementioned documents was

unable to identify M.B. as the person who executed the documents. Co-defendant Steven Sergio

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testified that he did not sign the documents in question before a notary, and that he did not see

M.B. sign them. Lastly, M.B. testified that she did not sign either the promissory notes or the

affidavits for confession of judgment.

\ Plaintiffs also argue that even if the Court were to conclude that M.B. did not

" execute the documents in question, she is nevertheless obligated by same on the theory that she

gave her husband implied authority to bind her in this regard.

A review of the oral testimony and documentary evidence adduced at the hearing

clearly demonstrates that M.B. did not execute the documents in question. Plaintiffs' reliance on

the theory that R.B. was authorized to sign the documents on M.B.'s behalf is misplaced. Here,

the party who executed the promissory notes and the affidavits of confession of judgment was a

woman who appeared before a notary public and held herself out to be M.B. These facts

unequivocally demonstrat~ a scheme to deceive the notary into believing that M.B. herself was

executing the documents, and not that they were being executed by her husband as her agent.

As a result of the foregoing, this Court concludes that the signatures purported to

be that of Maura Burgess on the promissory notes and affidavits of confession of judgment were

forged. The Court respectfully refers to the issue of any attorney's fees to be awarded Maura

Burgess to the Honorable Joan B. Lefkowitz, J.S.C., the IAS judge assigned to this case.

This constitutes the Decision of this Court.

Dated: White Plains, New York May 30, 2008

3

~/?~ RICHARD B. LIEBOWITZ Zi; SUPREME COURT JUSTICE

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2

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1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

e~~EQ~~lf8~iIStn:~TATE OF NEW YORK

AND·R-EW-G'A-AAS:cfR"oE"l.lA)----x Plamfiff(s ,

-against-

MAURA BURGESSf d t( ) De en an s . iN5ifififlff9iii2oof·--------------x ------------------------------------------x FRANK BAUCO,

Plaintiff(s), -against-

MAURA BURGESSf d t( ) De en an s. iN5'Ex"ifli1"99i2ocif---------------x

~~~TfM~t1'fc-efQ~Nb(.£?URTHOUSE ~~~!il>f~'."fod\ew ~oil ':fb"so1

B E F 0 R E:

~S't#c~Ja~ffi'f/ cfm~~f POLA

JANET PENNA SENIOR COURT REPORTER

3

PROCEEDINGS

MS. FORTE: Denise Forte, of Trivella, Forte and Smith. 1311 Mamaroneck Avenue, White Plains, New York, for the plaintiffs Frank Bauco and plaintiff, Andrew Gambardella.

MS. STAROPOLI: Cathrine M. Staropoli of Hyman and Gilbert. 1843 Palmer Avenue, Larchmont, New York, 10538 for the defendant, Maura Burgess.

THE COURT: You may proceed. MS. STAROPOLI: I will call Mr.

Bauco to the stand first, your Honor. MS. FORTE: Judge, I'd like to make

opening statements; if that is okay? THE COURT: Of course you can. You may proceed Ms. Staropoli. MS. STAROPOLI: Your Honor, this is a

matter where my client, her accounts were frozen. She had no idea why.

She received infonnation from the Bank that there was a confession or documents that they had received with a confession of judgment, and a promissory note.

She immediately came to the Court and

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A P P EA RA N C E S:

AN &~ GBER};, ESQS. nev-for efimuanf 1-'a"lm r ve e bV:efSi 1 ~~~\~RbWou, ESQ.

PROCEEDINGS

2

4

got an order to show cause to stop them from levering her account and releasing the funds.

We appeared before Judge Lefkowitz. We were ordered to have a trial. We did, before Judge Liebowitz, at which time through police reports and an expert witness and a handwriting expert it was proven that her signature was forged.

I believe, which we will show throughout this case, that this is not the first time this incident happened with one of the plaintiffs, and also that they were aware that Mrs. Burgess had nothing to do with this. Even after the police report indicated that her signature was forged, I tried to resolve this matter.

They continued to go forward on the basis that my client was the only one who had the potential for them to collect and that she was working. After the handwriting expert gave his report, they still continued on based upon that she was the only one to collect.

Page 61: Burgess 143 Pages

® .

~

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2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

5

There are four people on this note. The plaintiffs never spoke to my client She was the alleged owner of this company but they never spoke to her about lending this money to the business.

I think that through our testimony and our documents it will show that this is all a scam, and that not only is this matter frivolous but that there is fraud.

The police In New Rochelle are even going to the DA's office to present this because this is not the only incident.

Also one of the plaintiffs had her ex husband incarcerated due to forgery before these documents were ever signed.

So, your Honor, I think it is a clear case that my client was scammed into this. Her signature was fraud, and the parties knew that.

One of the plaintiffs even had pressed charges against her ex husband for fraud and identity theft against him and her ex husband was one of signers on this promissory note.

7

PROCEED111GS

plaintiffs, who is on his way here, wired $75,000 from a home equity line into the business account of S and S Collision.

Mr. Bauco, made loans to the company both before and after the promissory notes were executed. And the amount that he made a capital investment into the company was in the amount of $75,000.

When my client lent the money to this business, Mrs. Maura Burgess, who is the defendant before you today, was 50 percent owner of the company.

Jannett Sergio, another 50 percent owner of the company. The two husbands Maura Burgess's Richard Burgess, and Jannett Sergio's husband, Steven Sergio, at the time ran the day to day business of S and S Collision.

When Mr. Bauco and Mr. Gambardella loaned $150,000 and the aggregate sum to the business they presented promissory notes and confessions of judgment.

Mr. Bauco tendered the promissory notes and the confessions of judgment to

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Judge, with all this being said it will be clear through our evidence and our testimony that not only is it frivolous but that there is fraud on behalf.

The fees that she incurred, when we tried to resolve this so many times. There are three other people that have not disputed that they signed the document. They could have gone after her. They continuect to seized her accounts and go after her solely, your Honor.

Thank you. THE COURT: Thank you. Counsel for

the plaintiff. MS. FORTE: Good Morning Judge. Judge, the chronological events that

occurred that bring us here today is in April of 2006.

My client Mr. Frank Bauce and my client, Mr. Andrew Gambardella loaned $75,000 each to a business called Parkway South Collision Inc. D/B/A S and S Collision.

Mr. Gambardella, who is one of the

8

PRO:r;c:oIUGS

Richard Burgess, and asked that they be signed and notarized and returned to him. He gave them to Richard Burgess who was the husband of Maura Burgess at this time.

THE COURT: He was the defendant's husband?

MS. FORTE: Yes. They were legally married. They were sharing a residence in April of '06 when the money was loaned.

Richard Burgess presented to my client four documents that were signed and notarized. Two individual notaries were involved, Walter Taigle and Betty Rivera. Those were the two notaries that signed the document.

As I said these documents were notarized in April of 2006. The promissory note called for 12 installment payments of interest only. The company made roughly seven or eight installments on this note and then about February of '07 they defaulted. My firm was contacted by Mr. Bauce and Mr. Gambardella. We sent default notices to all four of the

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individuals. All four individuals who reportedly signed these confessions of judgment, and these promissory notes, were sent default notices. No action was taken. The defaults were not curred.

In May or June of 2007 my clients asked me to go into Westchester Supreme and to enforce the confession of judgment which I did against all four individuals.

My office thereafter, after getting the signed judgment entered by the clerk, served all the individuals, Maura Burgess Richard Burgess, Steven Sergio and Jannett Sergio with personal restraining notices we served three different banks, Commerce Bank, Bank of New York and Chase.

We took affirmative action against all of the named defendants. The only account that we restrained were accounts with Maura Burgess and accounts with Jannett Sergio. Jannett Sergio we had to release the accounts because it was an attached account with a minor. So, that account was attached.

11

PROCEEDINGS

that the document was indeed forged. Maura Burgess presented a handwriting expert.

The notary testified at that hearing the notary testified that she never saw anyone. She never saw Mr. Bauco. She never saw Mr. Gambardella. She never saw Maura Burgess. She never saw anyone.

The long and short of that decision, in which I have a copy of the transcript here, and relevant excerpts for your consideration, came down with a decision that the signatures were forged.

At close of the hearing Ms. Staropoli, as attorney for the defendant, Maura Burgess, for the first time made an application for attorney fees. There was no formal application made before this Court. There was nothing in the orders to show cause which were commenced by Maura Burgess which asked for attorney fees.

Judge Liebowitz in rendering the decision referred the attorney fee matter back to Judge Lefkowitz. Ultimately Judge Lefkowitz had to recuse herself because her

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Upon learning that Maura Burgess's accounts were attached, she came to the Courthouse. She moved by order to show cause, pro se, to have the accounts, the restraints lifted claiming that her signature was forged.

It was assigned to Judge Lefkowitz. We did opposition papers, reply, sur reply. Judge Joan Lefkowitz wrote a decision and set a framed issue. The framed issue was, if Maura Burgess's was forged then the restrains on her accounts should be lifted.

If her signatures were not forged then the accounts should remain restrained, and the money turned over to my client

That framed issue hearing was held before Richard Liebowitz because Joan Lefkowitz was, I believe, on a medical doctor's appointment the day we had that framed issue hearing.

The Framed Issue Hearing was held on March 3 of last year, 2008. Richard Liebowitz came down with a decision saying

12

PROCEEDINGS

father passed away and Ms. Staropoli's firm, Hyman and Gilbert, were representing the estate. She recused herself. It went back to Judge Liebowitz. Judge Liebowitz referred it to a JHO, and that is why we are here today.

Getting to the merits of this case, there is absolutely no grounds for Mrs. Burgess to collect her attorney fees in this case.

My clients relied upon, to their detriment, because it is undisputed that Mr. Gambardella, who just walked into the Courtroom, wired $75, 000. They relied upon signed and notarized documents which they had nothing do with procuring the notary.

So to my client's detriment relied upon a signed document and loaned this business money. It is undisputed that Maura Burgess was legally married to Richard Burgess at that point in time when the documents were signed. They were sharing a primary residence. They were

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living as husband and wife. They were raising their two children.

Subsequent to April of 2006, Maura Burgess has legally divorced Richard Burgess. Richard Burgess, from my understanding, speaking to opposing counsel, is currently incarcerated for forgery.

MS. STAROPOLI: He is out now. MS. FORTE: He was incarcerated. THE COURT: Excuse me. You are

shaking your head, no. He is not incarcerated?

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MS. STAROPOLI: He has been released, your Honor.

MS. FORTE: He was incarcerated, he served his time, and now he has been released.

It is very possible that Richard Burgess was the individual who orchestrated this entire forgery. However, Mr. Andrew Gambardella never got back a penny of his $75, 000. Mr. Bauco did get back some money from the company, but he is still out

PROCEEDINGS

There is absolutely no contract that provides for attorney fees, and I believe Ms. Staropoli will not be able to satisfy her burden of proof to show frivolous action in this matter.

Thank you, Judge. THE COURT: You made proceed. MS. STAROPOLI: Now that Mr.

Gambardella is here, I will question Mr. Gambardella first, your Honor.

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THE COURT: Please take the stand. Please raise your right hand.

Do you swear that the testimony that you give at this hearing will be the truth, the whole truth, and nothing but the truth?

THE WITNESS: Yes, I do. THE COURT: Please be seated. Give

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a significant sum of money. If we had to go to an inquest to prove

his damages, that would be one thing. We would be prepared to do it. However, Maura Burgess's application for attorney fees, and I believe the last time I checked with Ms. Staropoli, is somewhere close to $60,000, would be a complete and utter miscarriage of justice to punish the two individuals who lent money to this company. In essence they lent money to Mrs. Burgess's husband. Ms. Staropoli's claim that we somehow made it a witch hunt against Maura Burgess, is completely without basis.

As I said we restrained the accounts, and we served restraining notices and served three banks for all of the individuals. Unfortunately Maura Burgess was the only one, whose accounts that we restrained, was not forced to be released.

We went after Steven Sergio and his employment. We are trying to get our money back here, your Honor.

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1 PROCEEDINGS

2 BY CATHERINE M. STAROPOLI, ESQ.: 3 4 Q Please explain to the Court your 5 occupation? 6 A Right now I am self employed. 7 Q And at the time, April of 2008; what was 8 your employment? 9 A In 2006 I was working for ING. 10 Q As? 11 A As an insurance sales person. 12 Q You said that you are self employed. 13 What do you do for a living? 14 A I lend money. I do some real estate on 15 the side. I do a bunch of different things. 16 Q So you can say that you are 17 knowledgeable in the area of finances and lending 18 money?

you full name and address to the Court 19 MS. FORTE: Objection. Reporter. 20

THE WITNESS: Andrew Gambardella. 162 21 Pleasant Valley Road, Morganville, New Jersey, 07751.

THE COURT: You may proceed.

DIRECT EXAMINATION

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THE COURT: Objection sustained. Q Can you please explain to the Court how

you came to lend the money to Parkway South Inc.? A Through my cousin, Frank Bauco. He

informed me that this was an opportunity. That he had done business with this individual, Richard

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2 Burgess for a while. That it was a safe

3 opportunity to lend some money and get a nice 4 return. 5 Q Did he tell you that you would be the

6 only one lending the money? 7 A No, he did not. 8 Q What did he tell you?

9 A He told me I would lend money, and that 10 he would lend money also. 11 Q Did you ever speak with any of the 12 owners of Parkway South Inc.?

13 A After I lent the money, yes.

14 Q Who did you speak with? 15 A Rick Burgess and Steven Sergio. 16 Q Did you speak with any of the owners 17 before you lent the money?

18 MS. FORTE: Objection, your Honor, to

19 the form of the question. She is asking 20 the witness to draw a legal conclusion as 21 to who were the owners of the company. 22 MS. STAROPOLI: Your Honor, we have

23 established this clearly. She even 24 said --25 THE COURT: Can you answer the

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1 GAMBARDELLA/DIRECT EXAMINATION\STAROPOL!

2 money to Collision. What is the name, the proper 3 name of the business? 4 Q Parkway South Inc.? 5 A Parkway South Inc. That there were four 6 individuals on there. I was told that they co 7 owned the business. 8 Q Who told you that? 9 A Frank Bauco, and the promissory note 10 that I had signed. 11 Q I'd like to show you those promissory 12 notes. Are those the ones that you are referring 13 to? 14 MS. FORTE: I would like the record to 15 reflect that she only showed the witness 16 one promissory note. 17 Q It is a promissory note; correct? 18 A Yes. 19 Q This is the other document that you are 20 referring to, the affidavit of judgment? 21 A This is what I signed which had all

22 their names on it. 23 Q Does it anywhere on there say who the 24 owners of the business is? 25 MS. FORTE: Objection.

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question? THE WITNESS: I'm not sure. I might

have. I know I have met them. I was lending money based on my cousin's recommendation. I am not sure whether I met with them. I know that I met with them on one or two ocassions. I am not sure whether it was after or before I wired the money into her account.

THE COURT: All right. Q Who where those two that you believed to

be the owners? A Well, the papers that I received, there

was four owners on the document. That was Rick his wife, at the time, and Steve and his wife, at the time. So that was who I lent the money to. To their business.

Q You never spoke to Maura or Sergio? A No. Q Were you aware that Mr. Sergio and

Mr. Burgess were not the true owners of the business?

A I was only aware of what was on the documents of the paper, that I was lending the

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2 The document speaks for itself. If 3 Ms. Staropoli wants to offer it into 4 evidence that would be fine. 5 MS. STAROPOLI: Your Honor, he made a 6 statement that they were the owners of the 7 business. All four of them. 8 A I assume that by the fact that --9 THE COURT: I'm sorry? Keep your 10 voice up.

11 A I assumed that by the fact that they 12 signed this guarantee on this note. I assumed 13 that they would not sign anything, if I am lending 14 money to a business, that they are not liable for. 15 That is my assumption. Call me stupid, but. 16 Q Okay. 17 I'll take those back, thank you. 18 Who prepared those documents? 19 MS. FORTE: Objection, as to the form 20 of the question. If the witness knows. 21 THE COURT: Rephrase your question. 22 Q When your cousin approached you about 23 lending this money; what did you do next? 24 A What did I do next? I waited for 25 documents to come so that I had some kind of proof

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1 that I lent this money. 2

Q Where were these documents coming from? 3 A They were sent to me -- I am not sure. 4

My cousin got them to me. 5 Q Did you ever speak to the attorney about 6

preparing this document? 1 A Not at that time. 8 Q You were not aware of who prepared the 9

document? 10 A Not at that time, no. 11 Q When were you made aware? 12 A I assumed at their law office. At that 13

time I just took the promissory note and I 14 believed that that is where it came from. 15

Q Before the documents were signed you 16 never reviewed them? 17

A I reviewed them. I looked at them. 18 MS. FORTE: Objection to the form of 19

the question. 20 This witness didn't sign a document. 21

These documents were just prepared for my 22 client to rely upon in loaning the money. 23 I believe, and I don't know if 24 Ms. Staropoli is doing this intentionally 25

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GAMBARDELLA/D!RECT EXAMINATIOH\STAROPOLI 1 Q Any questions about the documents? 2 A No. 3 Q Did you ever want to speak to the 4

parties, like Mr. Burgess or Mr. Sergio before the 5 money was lent? 6

A No. 7 Q Could you explain to the Court why you 8

lent a business, that you know nothing about, 9 $75,000? 10

A I didn't know anything about them. I 11 went on my cousin's recommendation, and how 12 successful they were at what they did, and the 13 fact that he dealt with this Rick Burgess for many 14 years prior to lending the money. 15

I have done other business deals with my 16 cousin. He is a reputable individual. I trust 17 him. That is what I did. 18

Q Were you aware that Mr. Sergio had been 19 arrested and convicted before lending the money of 20 RICO and tax evasion and fraud? 21

MS. FORTE: Objection as to relevance. 22 Mr. Sergio is a co defendant in this a 23 case. I don't see any relevance to the 24 issue of attorney fees which is 25

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or just by circumstance, she is confusing the witness because she is making him answer as if he signed something.

MS. STAROPOLI: Your Honor, that is not what I am trying to do. He is in the finance business. A No, I was in the insurance business.

MS. STAROPOLI: Insurance business. He deals with finances. He is lending a business money, and not looking at a promissory note? A I did look at the promissory note.

don't know what you are talking about. THE COURT: Let's move on. Next

question. Q Before the documents were signed by the

defendants; did you review the documents? A Yes. Q And who forwarded those documents to

you? A My cousin. Q Did you have any objection with the

documents? A No.

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GAMBARDELLA/DIRECT EXAMft;A7iO!l\STAPO~~;.:

respectfully before this Court. As to one of the other co defendants

and his criminal violation -- I guess we should ask Mrs. Burgess, why would you ever go into business with someone who is convicted.

MS. STAROPOLI: Your Honor, this is a person who, one of the defendants, who has the ability, has stole the money, has been convicted.

If you are going to lend someone money you would think that you would be more into the business and the party you are lending the money to.

THE COURT: There is no issue with regard to the fact that he did loan the money?

MS. STAROPOLI: With him, no. With the other person, yes, your Honor.

MS. FORTE: I just don't see the relevance.

THE COURT: I am not sure I follow that.

MS. STAROPOLI: Your Honor, the

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question is, these people who you knew from the beginning, you know them. You know that they are involved in tax evasion, fraud forgery. You don't think that that is a possibility it could happen again? You don't want to speak to all the parties?

MS. FORTE: I'll let Ms. Staropoli explore this line of questioning as long as I can ask Mrs. Burgess, on cross-examination; how could you ever marry a man who would go into business and do -­it is a ridiculous line of questioning, is all I am saying, your Honor.

THE COURT: Objection sustained. Let's move on. Q Were you aware that Mr. Bauco, prior to

having this document signed, had pressed charges against Mr. Burgess for fraud, forgery and identity theft?

A No. Q After Mr. Burgess submitted orders to

show cause; did you ever speak to Mr. Burgess? A Excuse me? Q After Mr. Burgess submitted orders to

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1 GAMBARDELLA/DIRECT EXAMINATION\STAROPOLI

2 A The answer is, yes. 3 Q So you did have a conversation with 4 Mr. Burgess? 5 A Yes. I am not sure of the time. That 6 was immediately after we could not receive our 7 funds. 8 Q What did Mr. Burgess advise you? 9 A What did he advise me?

10 Q What did he tell you? 11 A He said not to mess with her because her 12 father was connected with White Plains. I don't 13 know, in the the Court system. Her father was a 14 powerful individual. I shouldn't mess with her, 15 and that the money that was lent out he sent me a 16 fax of checks. 17 I'm telling the whole truth. You were 18 there. You know what happened. Some of the that 19 money I had lent went to businesses other than the 20 business I lent it to. Out to people that Frank 21 had associations with. 22 Q Did he also tell you that it went to his 23 family members and other businesses of his? 24 A I just said, yes. 25 Q You didn't say specifically Mr. Bauco's

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2 show cause; did there come a time when you spoke 3 to Mr. Burgess? 4 A Not that I am aware of. 5 Q Wasn't there a conversation where --6 MS. FORTE: Objection. Leading. 7 MS. STAROPOLI: This is a hostile 8 witness, your Honor. I know for a fact 9 that this is an untrue statement because he

was in my office. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MS. FORTE: Ms. Staropoli could be sworn in and she can testify if she would like. But if the witness has answered the question, not to his recollection. If she would like to attempt to refresh his recollection that is one thing. I am not going to have her lead my client.

THE COURT: What is your question to the witness?

MS. STAROPOLI: The question to the witness is; did there come a time when Mr. Burgess called Mr. Gambardella and told him what happened to the portion of the money that was wired, transferred into the account?

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1 GAMBARDELLA/DIRECT EXAM!NAT!ON\STAPOPOL!

2 businesses? 3 A I said my cousin. 4 Q Did you have a conversation with 5 Mr. Bauco after this? 6 A Yes. 7 Q What did he tell you? 8 A That he lent them money in the past. He 9 lent him all kinds of money. That this was 10 normal. The money was going in and out. This was 11 money that was loaned to him prior to this. That 12 it had nothing do with my money. 13 My money was to be used for them to help 14 with their capital investments in tools, machines 15 to help them run their body shop? 16 Q Mr. Gambardella, if I just understand 17 you correctly --18 MS. FORTE: Objection. I am not going 19 to have Ms. Staropoli summarize my client. 20 If she has a question, please direct it to 21 the witness. 22 THE COURT: What is your question? 23 Q So the money was explained to you that 24 it was to be used solely for the capital purpose 25 of the business and not to give back?

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2 A That was told to me by Rick, Steve, 3 Frank and everybody. 4 Q When did Mr. Burgess tell you that? 5 A When I lent the money. 6 Q So before your conversation? 7 A I am not sure before or after I lent the 8 money. I know I talked to the owners during our 9 relationship. The year that they were paying some 10 of interest on the loan back, I visited the shop 11 at least twice, I believe. 12 Q Do you recall when you wired,

13 transferred these funds? 14 A Sometime in 2006, Spring. 15 Q If I give you this? 16 A I haven't really looked at anything. 17 Q On there can you tell me the specific

18 date there? 19 A At the top it says 4/30/06. 20 Q If you look there Is a wire transfer? 21 A 4/11. 22 Q Can you turn to the next page; was there 23 a check written on 4/12? 24 A Which check are you referring to? 25 Q The check would be --

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1 GAMBARDELLA/Dl?ECT EXAMINATION\STAROPOLI

2 Q Do you know who Webuilt is? 3 A Not sure. 4 Q Who do you think it is? 5 A I'm not sure. 6 Q Check number 1230? 7 A Where is check number 1230? They are 8 not in order. 9 Q I will show you this copy.

1 O A Why don't you just stay here. 11 Q That is fine. On check 1230? 12 A Michael Bauco. 13 Q Who is Michael Bauco? 14 A My cousin's son. 15 Q How much is that check written out to? 16 A $5,000. 17 Q Check number 1232? 18 A I can't read. HW --Alex Biagoni. 19 Q How much was that check made out for? 20 A $6,000. 21 Q What is the date on that check? 22 A 4/13. 23 Q Going back to the first page; prior to 24 your transferring the money; how much was in the 25 account?

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~:AMt'i,t'l·F:.l A ~ ! F:F ·7 r:.;A:·~: ~:A~: t\S\;:: t,!l. t .. A I need my reading glasses which I don't

have. I am at a disadvantage here. Q Please take this one, and I will take

that one. If you refer to check number 1226. A These are not highlighted at all? Q Correct. Check number 1226? A They are not in order. Q They should be in order. A I have starting with 1235 on this. Q I will show this one? A Here is 1226 on the second to last page. Q How much was that check written for? A $20,000. Q Can you see on the bottom where is says

date presented? A No, I can't. Q I will give you this one so you can see

where it says date presented right here? A 4/11/06. Q So the day you transferred your money

was the same date that this check was written? A Correct. Q Who was that made out to? A We built.

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MS. FORTE: Objection. Which account and how would this client know if she was talking about a business account?

MS. STAROPOLI: Your Honor, this is the bank statement from Parkway South Inc. where he transferred the money.

He admitted that this was the wire transfer that he did. The wire transfer.

MS. FORTE: Correct. I believe that counsel's question was

asking how much was in the account prior to his transfer? How would this witness possibly have knowledge of how much money was in an account before he transferred money into it, and how much money was in an account afterwards. It was a loan to a business entity.

MS. STAROPOLI: On bank debit, your Honor.

THE COURT: I am not sure where we are going?

MS. STAROPOLI: Your Honor, he said that the money was supposed to be only for capital, for tools. That is what he was

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advised by his cousin, which he talked about, and these other people that were supposedly the owners.

In fact, this was money given to the other plaintiff. It was not used for capital, tools.

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It was money that was given to his family members, given to his nephew, given to Mr. Bauco and his other business associates.

MS. FORTE: Assuming for one second that Ms. Staropoli is correct. What difference does that make to my client who undisputedly, Mr. Gambardella, wired $75,000 into a business. Made that loan based upon a reliance of a promissory note signed by the two owners of the business and four personal guarantors, and secured by affidavits of confession of judgment.

What is the relevance for an attorney fees application with respect to my client, Andrew Gambardella?

THE COURT: I am wondering about that also?

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GAMBARDELLA/DIRECT EXAM!?lATION\STAROPO~l

2 responsible for it. 3 MS. FORTE: Your Honor, the checks 4 that Ms. Staropoli highlighted don't equal 5 $75, 000. That is the first thing. 6 They went through a business account. 7 They were loaned to the business. Whatever 8 that business did with money which is 9 arguably Mrs. Burgess's call and

10 Mrs. Jannett Sergio's call. It had nothing 11 to do with these two individuals. It had 12 to do with her husband. 13 In the best case scenario it had to do 14 with her legal spouse at the time that 15 these monies were transferred. 16 When Mrs. Burgess testifies today, she 17 will testify that she knew that her husband 18 was running the business. You cannot turn 19 around three years later and make an 20 application for attorney fees in a case 21 that your husband, unfortunately, put you 22 in the jackpot 23 You signed to be 50 percent owner of 24 this business. No one forced you. My 25 client certainly didn't force her to become

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MS. STAROPOLI: Your Honor, he based all of this on reliance of what his cousin told him. A No. Q You said initially he lent the money

7 because your cousin said this was a good business 8 investment. You would be lending it for capital. 9 MS. STAROPOLI: Then when he found out 1 O that his checks were not used for that he 11 was questioned, his cousin told him, no, 12 they weren't used for us. 13 So I am trying to show one persons 14 credibility through another persons 15 creditability too, your Honor. 16 This whole thing was a scam. This is 17 what I am trying to show. Because one 18 person told one person to lend the money so 19 that he could get the money back. And 20 that's what they show. These checks were 21 written out after the money had been 22 transferred to the other party. 23 A Why wouldn't he ask me for the money 24 directly? 25 Q Because someone else would be

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a 50 percent owner. MS. STAROPOLI: Your Honor, again,

they did not speak to her. If she is such an owner, why didn't you speak to the owner. This is reiterating our opening arguments. This was a scam that my client got scammed in with. That Mr. Bauco has done before with other businesses. I have the proof and I have another case that is pending in Supreme Court that shows the same notary notarized the signature that was fraud.

So this was all for -- I don't know what the big scam is, and that is why the DA is getting involved. This is a scam on the part of my client.

After I give her the proof, the Detective Benge going to see the notary, saying, no, that wasn't her. The handwriting expert. They still didn't back down. This is a witch hunt against my client. She is the only one that is responsible and works and is in the middle of a divorce, and she will have to

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refinance her house, your Honor. They did go after her solely.

And even after all that proof they continue to go forward because they can't collect against anyone else.

MS. FORTE: Judge, what Ms. Staropoli is referring to is before the framed issues hearing which was held on March 3, 2008 before Judge Liebowitz, she had faxed over to my office and handwriting expert report and a police report.

I consulted with my clients -- it would be malpractice for me not to cross examine those individuals that offered those documents and tell my client who undisputedly wired in $75,000 and my other client who had a business relationship with the business and has lent them money and lent the $75, 000, in reliance. You have to take these document on their face value.

I believe due process mandates that my clients have a right to cross examine documents and witness' that are used against them.

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~AMBAP~ELLA/OIRECT EXAMINATIO!l\STAROPOLI

2 relationship with Richard Burgess who is 3 the legal husband of Maura Burgess at the 4 time, he is right here. He is going to be 5 the next witness. To ask Mr. Gambardella 6 who loaned money these questions is a waste 7 of the Court's time. 8 MS. STAROPOLI: Your Honor, Ms. 9 Forte has the right to have a

10 cross-examination. I am entitled to also. 11 This man lent money to someone that he 12 didn't even know. He took it on his 13 cousin's word. He never even spoke to the 14 owner. If they were the owners, wouldn't 15 you speak to owners -- I'm lending you 16 money. You are going after her for the 17 money. 18 A Four individuals signed. They were 19 married. I spoke to the husband. I lent the 20 money in good faith. The business was profitable 21 as far as I knew. 22 Q Did you review the books? 23 A No. This was there for a while. It was 24 busy when I showed. It seemed like it was running 25 well. I lent them money.

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1

38

MS. STAROPOLI: Your Honor, she could have spoken to the police. It's a simple thing. They contacted her office and they did not speak to them.

MS. FORTE: That is not true. I spoke to the detective.

MS. STAROPOLI: So you did speak to the detective and you could have easily found out from him about his investigation. I was told verbally those things. That they were going after my client because she was the only one who is responsible. She might not have done it but I'm sorry, we are going after her.

So, your Honor, I am telling you that this has been done before. Why would you lend money to somebody who pressed charges for forgery not a month before you know he has the potential to do it again. He did it to your own credit card.

MS. FORTE: All of Ms. Staropoli's potential questions should not be aimed toward Mr. Gambardella. If she has any questions about Mr. Bauco's

40

GAMBAPDELLA/OIRECT EXAM!NAT!ON\STAROPOL!

2 Q And five months after the business went 3 under. So it was not as profitable as -- you lent 4 money without referring to the books or speaking 5 to the owners? 6 MS. FORTE: Objection. Argumentative. 7 Assuming everything that Ms. Staropoli 8 says is correct, how is this a frivolous 9 litigation in trying to collect on the

10 $75,000 that he loaned into company? 11 A You think I lent them money and I didn't 12 want to get paid back? 13 Q I am saying to my client solely. I am 14 not fighting Mr. Burgess. I am not fighting for 15 Mr. Sergio. I am fighting as it being frivolous 16 to my client. 17 She was the one that had no idea what 18 was going on. They knew she was not there. She 19 was not running the business but you don't contact 20 them. The other party knew that her husband had a 21 potential for fraud and forgery. He was in prison 22 for like a few months. 23 So why would you want someone not a 24 month later after you pressed charges for forgery? 25 THE COURT: The witness was not part

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;A:-:!~1\?:·r.':1\ :~::i~ ·:- :-.;,,\:-n:;A:·: \?;\~:.·\? 1 :»'.,:

of that. MS. STAROPOLI: But, your Honor, you

have a responsibility for lending money as well. You can't plead ignorance.

THE COURT: You are seeking to hold him responsible for loaning the money?

MS. STAROPOLI: YourHono~youdon1

lend that much money without looking into the business.

THE COURT: As I understand it he did loan the money?

MS. FORTE: Correct, your Honor. MS. STAROPOLI: He did. We are not

disputing that he loaned the money. I am disputing that It shouldn't be solely against my client.

MS. FORTE: Judge, I will introduce these into evidence. These are the restraining notes that my firm served on all four defendants on different banks trying to seize the assets of all four defendants when we entered the confession of judgment, when the business defaulted on the promissory note.

43

GAMBARDELLA/DIRECT EXAM!NATION\STAROPOLI

honor, that was my main objective. THE COURT: The fact is that he did

depend on his cousin's word. MS. STAROPOLI: He never took in

consideration -- your a business man. You just don't lend money to people without speaking to them.

THE COURT: I am not sure where you are going with this.

MS. STAROPOLI: Credibility. To show that is the reason why -- he had a chance, your Honor, to say we have to give them a settlement offer. I said, we will walk away this was after the police came up with identity --

THE COURT: Are you contending that your client should be awarded counsel fees

because of his actions? MS. STAROPOLI: A portion is to his

actions, yes. After the police had gone to the notary, and it was proven and they took down an investigation, and they proved that there was forgery, and that the notary not notarize Mrs. Burgess's.

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How can Ms. Staropoli in good faith make a claim to this Court that we went only against her client. Her client was the only one that we got an account restrained and went in by order show cause. If the other defendants would have had their accounts restrained and would have went in by order to show cause the same situation would have arose as to all four of them.

MS. STAROPOLI: Mrs. Sergio has a home. There is no lien against her home. Mr. Sergio worked for the Union and was getting paid. They went to three banks. How many banks are there? Your Honor, Mr. Sergio has left the state. They can put a lien against her home because her home has no lien again it. Your Honor, there is clear evidence there --

THE COURT: I am not sure what you going to get out of this witness.

MS. STAROPOLI: I just want to show that he had no idea what he was doing when he took it on his cousin's word. Your

44

GAMBARDELLA/DIRECT EXAMINATION\STAPO~O!.:

I gave a copy to Ms. Forte. She said that she spoke to the police officer. I was not aware of that. I said to them let's just walk away. We will walk away no attorney fees. You walk away and go after the other parties. I am not saying not to go. I was given the response, your Honor, that we still want to go after the business though.

So they will take over her individually and they still want her liable after the business. That doesn't solve the problem. They could still go after her.

MS. FORTE: Settlement discussions are inadmissible before a Court of law. I don't have a problem with the Judge getting a full picture but for you to be testifying

on the record as to conversations that we had in lieu of settlement or in hopes of settlement, are completely irrelevant

MS. STAROPOLI: It was me offering and them saying, no, we are going after her because she is only one in the situation. She has to continue on even though they had

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45

1 2 the proof, your Honor. 3 MS. FORTE: That is completely and 4 utterly a distortion of the truth. This is 5 specifically why, Judge, settlement 6 discussions are not supposed to be 7 admissible into a Court proceeding. 8 THE COURT: Let's try to get back. 9 Do you have another question for the 10 witness? 11 MS. STAROPOLI: Yes, your Honor. 12 Q In October of '07, did you have a 13 conversation with you attorney regarding the fact 14 that police had spoken with the notary, and it was 15 not Mrs. Burgess's signature? 16 MS. FORTE: Objection. Attorney 17 client privilege. 18 Q Were you made aware that the police had 19 investigated that there was forgery and that 20 Mrs. Burgess did not appear before a notary? 21 MS. FORTE: Objection as to a 22 mischaracterization. Detective Benge 23 testified on March 3 that he never 24 completed his investigation because he 25 found out if a crime was committed of

1

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GAMBARDELLA/DIRECT EXAMINATIOU\STAROPOLI

A I'm not sure when I was told. I was

47

46

1

2 forgery it was outside of his jurisdiction. 3 MS. STAROPOLI: But, your Honor, he 4 did write a report saying that the 5 signature was forged. 6 MS. FORTE: He never concluded his 7 investigation. He testified has to that on 8 March 3, 2008 before Judge Liebowitz. I 9 have the transcript. 10 MS. STAROPOLI: I will ask the 11 question in another manner. 12 Q Were you advised that there was an 13 investigation pending, and that Detective Bengege 14 spoke with a notary? 15 A No. I was advised that your client was 16 claiming that she did not sign the papers. 17 Q You were never told that Detective Benge 18 spoke to the notary? 19 A I did not know who Detective Benge was 20 before I saw him in Court. That is what we were 21 trying to prove in Court whether she signed it or 22 not, but she was still the owner of the business. 23 Q Were you ever told that there was a 24 handwriting expert hired by Mrs. Burgess and that 25 had concluded that it was not her signature?

1

2 GAMBARDELLA/DIRECT EXAM:NAT:o:;\s7ARuPULI

MS. FORTE: Judge, Ms.

48

3 aware of it when I went to Court. 3 Staropoli's representation to the Court is hearsay, and it is irrelevant to the issue which is before you. When four individuals sign as personal guarantors of a note they sign joint several liability.

4 Q You weren't aware of it? 4 5 A I was aware of it when I went to Court 5 6 because he testified. That is what the whole 6 7 proceeding was about. 7 8 Q So prior to that were you not aware of 8 9 it? 9 10 MS. FORTE: Objection, as to 10 11 relevance. 11 12 THE COURT: Sustained. Next question. 12 13 Q While this action was pending, did you 13 14 make any deals with Mr. Sergio with regard to the 14 15 money that he owes you? 15 16 THE COURT: Objection, as to 16 17 relevance. 17 18 MS. STAROPOLI: Your Honor, because I 18 19 think that maybe a separate deal was with 19 20 one of the co defendants. Then my client 20 21 should not be pursued. We were advised by 21 22 Mr. Sergio, who we can't get here because 22 23 he left the state, that she had nothing to 23 24 to with it, and that they had worked out 24 25 some kind of deal. 25

If Ms. Staropoli wants to ask a question; did my client get any money repaid? That is a question.

However, to say what we possibly did with the other three defendants is

irrelevant and frivolous litigation. MS. STAROPOLI: It is not because four

individuals did not sign this document. Four individuals did not sign. My client did not sign the document.

If they worked out another deal with the other defendant it just proves that they continued on even after this action was going to go after my client was frivolous because they already made a deal with another of the defendants.

THE COURT: Are you not asking the wrong witness the question?

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MS. STAROPOLI: No. because it would be the same for him. If he made a deal it works out for both of them because they are represented by the same attorney.

THE COURT: We are going to take a five minute recess. I would like to see both counsel, please. Let's go off the

1 2 3 4

5 6 7 8

50

MS. STAROPOLI: If there was an action pending and they are making out a deal with another party which they would have gotten payment--

THE COURT: Your question is whether they --

1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

record. 9 MS. STAROPOLI: There was an action

pending. My client was disputing her signature. During all of this one of the (Whereupon, a discussion was held 10

off the record.) 11 other defendants -- I am not sure whether 12

(Whereupon, recess was taken.) 13 or not there was any deal with him reached or made with regard to payment or forgiving his payment or any of the above which would kind of show that they continued to bother my client because of something they had did or agreed with the other defendant.

14 MS. STAROPOLI: Your Honor, what about 15

the question about Mr. Sergio? We never 16 got an answer as to whether or not he can 17 respond as to whether there was any -- 18 Why would they release one of the

other defendants then, with no reason? while this action was pending against 19 Mrs. Burgess if there was deal or any 20 MS. FORTE: Again, I renew my

objection, your Honor. It is completely irrelevant, and it was Mrs. Burgess's

application that was pending at this time for release of the accounts. I believe that this question is irrelevant with

agreement reached with Mr. Sergio about 21 repayment? I had asked and Ms. Forte had 22 objected. 23

MS. FORTE: I just will renew my 24 objection as irrelevant, Judge. 25

51

1 GAMBARDELLA/DIRECT EXAMINATIOH\STAROPOLI

2 respect to Mr. Gambardella and the issue 3 which is before the Court which was my 4 clients entering a confession of judgment 5 trying to collect its money a frivolous 6 action which is what this case boils down 7 to. 8 MS. STAROPOLI: It more than that. It 9 is continuing on after all the proof and

10 all the evidence, your Honor. 11 THE COURT: You can inquire as to the 12 continuation. Is that what you want to do? 13 MS. STAROPOLI: I want to know if they 14 made an arrangement with the other 15 defendant. Because there is no lien on his 16 home. 17 THE COURT: You want to determine what 18 if anything that they accomplished with the 19 defendants? 20 MS. STAROPOLI: Correct. 21 THE COURT: You can do that.

22 Q Mr. Gambardella, have you received any

23 money from Mr. Sergio? 24 A No. 25 Q Have you made any arrangement with

52

1 GAMBARDELLA/DIRECT EXAMINATIOH\STAROPOLI

2 Mr. Sergio? 3 A Yes. I am trying to recoup money. 4 Another schedule of payments. I have not received 5 anything from anybody in this case. I am just 6 trying to recoup our money that I lent out from me 7 and my family. 8 It is my money. She is the owner of the 9 business, from what I am informed. I did not know

10 who signed those documents. I am not being 11 frivolous here. You have to put yourself into my 12 shoes. I just want my money back. I didn't do

13 anyone wrong here. You --14 MS. STAROPOLI: Your Honor, he 15 answered the question. 16 A Let me finish here. 17 Q No. 18 THE COURT: Let him finish. 19 A Because you called me ignorant for 20 lending out money. I get recommendations all the 21 time. I have been in business with Frankie, and I 22 have done some good deals with him. Nice business

23 opportunities, and they have been fruitful. 24 I have been in business with my stock 25 broker. Now with the market, not so friutful.

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2 The point Is that I lent this money, and 3 I expect to get it back. If I was lent the money 4 I would pay it back. That is all I am contending 5 here. I am trying to get money back from 6 everybody in this argument. I don't know what you 7 are trying to portray here. I have nothing 8 against your client. I don't even know her. 9 THE COURT: That's enough. Next 10 question. 11 Q Have you put a lien against Mr. Sergio's 12 home? 13 A I have not done anything. I am not a 14 lawyer. I have instructed my counsel to go and 15 try to recoup the funds. 16 Q Has your counsel put a lien against 17 Mr. Sergio's home? 18 A Not that I'm aware of. 19 Q Do you know why she hasn't put a lien 20 against the home? 21 A Not that I am aware of. 22 Q Have you received any payments from 23 Parkway South Inc.? 24 A Yes. 25 Q Do you know how much?

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GAMBARDELLA/DIRECT EXAMINATION\STAROPOLI

MS. ST ARO POLI: Your Honor, it is relevant. If you are going to go after one person and not go after the others why would an attorney put a lien against her home when they are selling it?

55

MS. FORTE: Objection, as to relevance. This witness has answered the question. It is verging on arugmentative. Maybe she will have more luck with the next witness. I don't know.

MS. STAROPOLI: He dosen't follow up with his attorney to find out about his money?

MS. FORTE: He has answered quite to the contrary, Judge.

THE COURT: You have an objection. will sustain it. Let's move on.

MS. STAROPOLI: I have no further questions for this witness, your Honor.

THE COURT: Do you have any questions for this witness?

MS. FORTE: No. I have no questions of this witness.

THE COURT: You may step down.

54

1 ~A !11~ AR : !-'. : !. 1\ : : ? :- . 7 ~ .\ ,, :1 : s ,\ : : '~· I 3 : t\ ':' i

2 A Probably I got paid interest on the 3 business for about eight months. Interest on the 4 loan. Sorry. 5 Q You had stated that you made some kind 6 of arrangement with Mr. Sergo; has he re executed 7 any documents? 8 A What does that mean? 9 Q Has he signed any documents with reagrd 10 to your arrangement with Mr. Sergio? 11 A I believe he has. 12 Q When was this done? 13 A Probably when we tried to rework the 14 loan.

15 Q When was that, approximately? 16 A After they stopped paying on this. 17 was trying to get him to pay something back to us. 18 So that is what we are trying to do. We 19 are going all out to recoup those efforts. Why 20 she didn't put a lien on the home, maybe there is 21 not a lot of value on the home. I'm not sure. I 22 have instructed my counsel to go and recoup some 23 of my money. 24 Q Have you followed up with that? 25 MS. FORTE: Objection as to relevance.

56

1 GAMBARDELLA/DIRECT EY.AMlNATION\STAROPOLI

2 THE WITNESS: Thank you, you Honor. 3 THE COURT: Call your next witness. 4 MS. STAROPOLI: I call Mr. Bauco to 5 the stand, your Honor. 6 THE COURT: Please raise your right 7 hand. 8 Do you swear that the testimony that 9 you are about to give will be the truth, 10 the whole truth, and nothing but the truth? 11 THE WITNESS: Yes, I do. 12 THE COURT: Please be seated and give 13 you name and address to the Court Reporter. 14 THE WITNESS: Frank M. Bauco. 99 15 Peach Lake Road Brewster, New York, 10509. 16 THE COURT: You may proceed. 17 MS. FORTE: Thank you, your Honor. 18 DIRECT EXAMINATION 19 BY CATHERINE M. STAROPOLl,ESQ.: 20 21 Q Hi, how are you? 22 A Good. 23 Q Could you tell the Court what your 24 occupation is? 25 A I am self employed.

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1 2 Q What do you do? 3 A Manage my own real estate. 4 THE COURT: Please try and keep your 5 voice up. 6 Q Do you own any businesses? 7 A Yes. 8 Q What businesses do you own? 9 A 550 Realty Associates Elite 10 Developement. Also FMD Industries. 11 Q At one time did you own 550 Franklin 12 Avenue in Mt. Vernon? 13 A Back In the 80's, late 80's. 14 Q When did you sell that? 15 A About eight years ago. 16 Q That would be 2001? 17 A If that is what eight years is. 18 Q What is your relationship to Webuilt? 19 A She is a friend of mine. 20 Q There is no business relationship? 21 A With Webuilt? 22 Q Yes. 23 A No. 24 Q Were you in the business of making 25 loans?

59

1 BAUCO\DIRECT EXAMINATIOU\STAROPOLOI

2 can do with regards to getting it. I asked my 3 cousin since we were doing other things and he was 4 looking to do other things since it was slow. I 5 asked him if he would participate in the loan. 6 Q What did you tell him in addition to 7 that? 8 A I told him it was total of 9 $150, 000. It would be $75, 000 on his. I told

10 him what the interest rate was, and told him that 11 I had done business with Rick in the past ten 12 years, and I never had a problem with him. It was 13 like business as usual. 14 Q How did you lend this money? 15 A How did I lend it? 16 Q Yes. 17 A Myself? 18 Q Yes?. 19 A When we did this I already had money 20 lent to Rick, and I would give him other monies on 21 my credit cards. 22 Q You said that you had monies already 23 lent to Rick? 24 A Yes. 25 Q When was that money lent to Rick?

58

1

2 A Yes. 3 Q Can you please explain to the Court how 4 you came about to lend Parkway South Inc. this 5 money? 6 A This money? 7 Q The alleged $75, 000 that you lent? 8 A Rick and Steve came to me looking to see 9 if I can get them a loan. I already had money 10 with him already. I told him I would see if I 11 could get him a line of credit with the business, 12 and gave it to my son. He had dealings in that 13 business. 14 At that one time they did come up and 15 was able to get -- he had a commitment for 16 $100,000 line of credit. At that point the only 17 way he could get it was that Steven Sergio would 18 have to put up his house for a year and then he 19 would release it. Steve at that the point said 20 that he couldn't do it because he had some 21 other -- he had a refinance or whatnot but he 22 would do it afterwards. 23 Q How did it you come about that you 24 approached your cousin? 25 A At that point I said I would see what I

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1 BAUCO\DIRECT EXAMINATIOU\STARDPOLOl

2 A I don't know exactly. It was prior to 3 that. How far before that, I don't remember. 4 Q How much was this money that you lent to 5 Rick? 6 A It was -- the actual funds before that I 7 think were 30 some odd thousand. If I recollect. 8 Then I gave him some money on my credit card and 9 cash -- actually the money that I lent to him 10 exceeds $75,000. But the only thing I have on 11 note is the $75,000. 12 Q The money that you lent before the note 13 was prepared and signed by Mr. Burgess --14 A Excuse me? 15 Q The money that you lent to him prior to 16 the preparation of this note --17 A Yes. 18 Q -- did you have a promissory note from 19 Mr. Burgess? 20 A No. Part of the agreement of that note 21 was that it would be all consolidated. 22 Q That agreement was solely with 23 Mr. Burgess? 24 A Mr. Burgess and Steve Sergio. 25 Q You never had a conversation with

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2 Mrs. Burgess? 3 A No. 4 Q With regard to -- how much money was 5 lent on the credit cards? 6 A I think 24, $25,000. 7 Q How did you lend the rest? 8 A All total I know what he owes me is over 9 $80,000. 10 Q That brings it up to 55. How was the 11 rest of the money lent? 12 A How was it lent? 13 Q Yes. You said you lent them $30, 000 14 before? 15 A Yes, previously. Some of it was way 16 back. I don't remember. Some of it was cash. 17 Some of it was checks. I don't recall exactly the 18 denominations. 19 Q You are saying some of it was cash and 20 some of It was checks? 21 A Right. 22 Q When we submitted papers you didn't 23 submit any checks evidencing your loan; correct? 24 A No. 25 Q You did sumit credit card charges?

1

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BAUCO\DIRECT EXAMINATION\STAROPOLOI

A Whatdate? Q I'll show you. A Just tell me what date? Q The March 2nd for $42, 079.93. It is

not marked. So I didn't lend it to him? Q These are --A It is not marked. If you look at it

everything that I lent him it is marked. It is not marked.

Q Okay so--A I didn't give it to him.

63

Q I understand that. It was never stated in the affidavit. It was just admitted.

You also didn't lend the All Reach Equipment?

A If it is not marked, apparently not. Q Did you ever receive payment for any of

these? A No. Just interest. Q You received the interest on this

charges but never any payments? A Correct. Q How did Mr. Burgess make these charges

on your AMEX card?

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14 15 16 17 18 19 20 21 22 23 24 25

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A Yes. Sure, definitely. Q Those credit card you are saying totaled

$24,000? A 24, $25, 000, in that range. Q I show you a piece of paper from an AMEX

credit card; is that your credit card statement? A Yes, it is. Q What is the amount you said you lent

again? About $27,000 and change. A

Q When were these charge made to your card?

A Between April and May of '06, looks like.

Q Were there any in March? A Could be. I am quickly looking.

don't see it. Q If you look at the first one that says

mail order, it says All Reach Equipment; when was that signed?

A That was March 8. Q And PACE BMW in Mamaroneck? A What date? Q Down further. Auto services?

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BAUCO\D!RECT EXAMINATION\STAROPO~OI

A I signed a -- its a form giving permission for him to sign to charge these items.

Q Who signed that? A Signed what? Q Thatform? A ldid. Q Who was authorized to use that credit

card? A Q

Rick Burgess. Soley Rick Burgess?

A Yes. Q Can you please explain to the Court why

you required Mrs. Burgess to sign the document? A Why? Q Yes. A Because she was the president of the

corporation. Her and Jannett. Q Why did you want to her to sign them

individually? A Excuse me? Q Why did you request that she sign them

individually A Because Rick and Steve were not owners

of corporation. They were guarantoring.

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65 66 1 :(,\"'""'; :rH ·: F'.t\!·~:~:A::,·!;';:·,\~"'i·t: ... : 1 !~ ,\ .. ' .. l \ : : !"' ~ • :' :-" ·'• '°' ~~ . ;. ,\ .. .• At-

2 Q That is why you had her sign as the 2 used by credit card without permission. That is 3 president of the company? 3 the affidavit that I signed. That I didn't give

0 4 A President and guarantor. 4 him my permission to use my credit card. . .

5 Q So she is guaranteeing this loan? 5 Q Was it an identify theft incident 6 A Yes. 6 report? 7 Q Prior to lending the money, did you 7 A I don't know what you want to call it. 8 speak to Mrs. Burgess about it? 8 I am just telling you what I signed. 9 A No. 9 Q When was that incident filed?

10 Q Could you explain to the Court why not? 10 A I don't know the exact date. I know 11 A I didn't in the past. 11 what you going to show me but I don't agree on the 12 Q Were you aware at this time that there 12 date? 13 were marital difficulties and they were not living 13 Q Please look at this? 14 together? 14 A According to this it says here the date 15 A No. Not at that time I didn't. 15 of occurance occurrence was March of '06. I 16 Q Didn't you file a police report against 16 believe that is an error. If anything it is March 17 Mr. Burgess? 17 of'07. 18 A A police report? 18 Q This is part of the New Rochelle Police 19 Q Did you file an incident with the Police 19 Department incident report. 20 Department of New Rochelle against 20 A I know what it says. 21 Mr. Burgess? 21 Q The date and time of occurrence is 22 A I stated that he had no permission -- 22 March 16 of '06; correct? 23 THE COURT: Please speak up. 23 A No. It should be '07. 24 THE WITNESS: Sorry, your Honor. 24 Q What does it say on the report? 25 A The affidavit that I signed was a -- he 25 A '06. It should be '07.

© 67 68

.

1 BAUCO\DIRECT EXAMlNATIOU\STAROPOLOI 1 BAUCO\~IREC7 EXAM1:;A::~tl\STAP1r:1:.o: 2 Q What does it say as the incident type? 2 he was there in '06. It just says '06. 3 A Identity theft. 3 Q Was there something else that happened 4 Q Can you please advice the Court as to 4 with this police report? Did something happen with 5 how you came to find out about this incident 5 Mr. Burgess and you, beside the one credit card? 6 theft? 6 A Beside the one credit card? 7 A I had went to use my credit card and I 7 Q Yes. 8 was denied. I called up the credit card compnay 8 A No. 9 and they said that you had a charge of over $9,000 9 Q Did Mr. Burgess also have an American 10 to the Avalon. I said the is not mine. I have 10 Express card that belonged to you?

11 nothing to do with that, and they took if off. 11 A Did he have an Amercian Express card? 12 Q Did you find out who was charging that 12 Q Or a copy of the card? 13 to the Avalon? 13 A No. 14 A At a later date after that, maybe weeks 14 Q So this Amercian Express Platinum is not 15 or a month, I'm not sure. Avalon called me up and 15 your card? 16 asked me if I was Rick Burgess's uncle. I said 16 A It is but he didn't have the card. 17 no. They asked me, did I give him permission to 17 Q I said a copy of the card? 18 use the card. I said no. 18 A No. 19 Q What is Avalon? 19 Q It says, that he had a zerox copy of an 20 A It is rental apartments. 20 AMEX platinum card in the name of the 21 Q Mr. Burgess was residing there? 21 complaintant? 22 A I don't know. 22 A If he had it, I don't know. What I 0 23 Q That was March of '06 based upon this 23 said was a document that I sigend with my card

' 24 report? 24 number is what I gave him. 25 A Based upon that report. I don't know if 25 Q I also asked you -- my question clearly

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1 2 stated; did he have a copy of another credit card 3 on him? 4 MS. FORTE: Objection, relevance. 5 have given Ms. Staropoli a little bit of 6 leniency because I don't want to keep 7 objecting. But I believe this line of 8 questioning is irrelevant 9 MS. STAROPOLI: Your Honor, this man 10 11 12 13

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1 2 3 4 5 6 7 8 9

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13 14 15 16 17 18 19 20 21 22 23 24 25

had given this guy his credit card or he has stolen them. He forged his signature or pretended to be him or a relative of his, and he is aware that he had the potential to do this but in the meantime he lent him money.

He also knew that his wife and him were having difficulties. He was living at another residence. Also he has forged documents before.

MS. FORTE: Judge, just to respond to Ms. Staropoli.

This is the first time myself or my client was given a copy of this police report. There is internal -- my client never signed this document. His signature

BAUCO\DIRECT EXAMINATION\STAROPOLO!

charge. You are going to see it in the next billing cycle.

So as Mr. Bauco testified, he has concerns or he doesn't know if this March 16 '06 date is right, as he testified.

I think it is more in '07, which

71

brings us outside of the time when the promissory note was signed. The promissory note was sign undisputably in April of '06. But this document that my client didn't

prepare, didn't review, did not sign has a problem factually with the date set forth. She is using this tenuous document to make a link as to the attorney fees in this case.

I wanted to give her leniency so we won't bog down the Court and just establish a record, but I don't believe she is making a connection to relevance to the issue in this hearing, especially not on a document which my client has no knowledge of.

THE COURT: Counselor. MS. STAROPOLI: Your Honor, this could

appears nowhere on it. If you look at the document--

70

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MS. STAROPOLI: I am not submitting the document.

MS. FORTE: But you are questioning my client on it, and it is internally inconsistant.

-- this was not a document that he prepared. A Detective Neil Reynolds prepared this.

MS. STAROPOLI: Your Honor, I am not submitting the document. I am asking if this is how this man was arrested?

MS. FORTE: There is a reason why she is not submitting the document.

THE COURT: One at a time. MS. FORTE: According to this document

it says the date and time of or occurrence is March 16 of 2006, but yet the date and time of this report is May 30, 2007.

I respectfully submit that if you are talking about a credit card charge, and as Mr. Bauco just testified, it is not going to take 15 months to dispute a credit card

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1 BAUCO\D!RECT EXAMINAT!DN\STAROPO~Ol

2 be part of the $75, 000 that he lent. How 3 do I know. This man is saying that he lent 4 money in cash. We are disputing that he 5 actually lent the money besides the $30,000 6 in proof that he paid back. How do we know 7 that he was not waiting. He waited this 8 long to pursue a promissory note, your 9 Honor. He waited over a year to pursue a 10 promissory note. 11 MS. FORTE: I'm sorry. When they 12 defaulted in April of '07, we went in in

13 May of '07 and got the signed confessions 14 of judgment. 15 MS. STAROPOLI: Your Honor, the 16 business did not stop existing until the 17 end of '06. That is incorrect. The 18 business was completely gone by November of 19 '06. 20 Q Whether the business was gone or not not 21 the note and the default with the balloon payment 22 of $75, 000 for Mr. Baico and $75, 000 for 23 Mr. Gambardella became due in April of'07. 24 If the business closed up in November or 25 October of '06, as she says, my client has no

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2 control over that They took action to collect on 3 the promissory note as soon as they are in 4 default?

5 MS. STAROPOLI: They stopped paying 6 interest to Mr. Gambardella in June of 7 2006. That was the last check that was 8 written. June 30, 2006 was the last check 9 written from business and interest to 10 Mr. Gambardella. That was over a year ago. 11 So people wait. Maybe he thought he 12 was getting it from the promissory note he 13 wrote.

14 I have proof $27,000 worth of credit 15 16 17 18 19 20 21 22 23 24 25

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2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

cards and that is it, your Honor. That is all that he has offerd as proof. Now he is saying I lent him this, I lent him that. They never gave a stich of proof except that credit card, $27 ,000. I have proof that it was paid back plus. Now with this it shows that he just waited again. He his saying that he lent before April of '06. But you waited to a promissary note until April of '06 for money until who knows when.

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BA~CO\DJRECT EXAMINATION\STAROPOLOI

A As I said before, I signed a form. There is a form that has to be filled out to give authority for the American Express. I gave my American Express number and I signed the document. That is what I gave.

Q Which American Express account? A My platinum. I only have one. Q You have only one credit card? A One American Express credit card. Q Is that the same platinum number? A I don't remember. I don't have my card

on me. Q How many American Express credit cards

do you have? Q I have one American Express platinum

credit card. Q How many American Express credit cards

do you have? A One. Q Can you read the last four numbers on an

American Express charge card? The last four numbers?

A 56001. Q On the police report or the incident

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10 11 12 13 14

This is all relevant This how this man had done things.

74

So you give someone your credit card to use and now you are pressing charges against him and he's gone to jail. You have given it to him at other times for him to use.

MS. FORTE: Your Honor, I renew my objection. I do not want to allow opposing counsel a stage to go on and pontificate over. I make my objection as to relevance, and I respectfully request that the Court make a decision and we go on with the

15 examination of Mr. Bauco. 16 THE COURT: All right Continue. 17 MS. STAROPOLI: Your Honor, I don't 18 where I left.

19 MS. FORTE: Go back five pages. 20 MS. STAROPOLI: I don't need the wise 21 remarks of opposing counsel saying, go back 22 five pages. She pontificates just as much. 23 THE COURT: Let's move on counselor. 24 Q Did you give Mr. Burgess a copy of your 25 Americans Express credit card?

76 1 BAUCO\DIRECT EXAMINATION\STAROPOLO!

2 report that I have given you; what is the last 3 five numbers of credit card that was taken by 4 Mr. Burgess that was your credit card? 5 A 55003. 6 Q Those are two separate credit cards; 7 correct? 8 A Not necessarily. 9 Q Please explain that?

10 A Because the number changes when they get 11 renewed or sometimes I change them because of 12 charges that are on my card that were not supposed 13 supposed to be there. 14 Q When you give them authorization on this 15 form, do also give them a copy of your credit 16 card? 17 A No. 18 Q Please explain how Mr. Burgess got a 19 copy of your credit card? 20 A I don't know. 21 Q So does that mean that he stole it from 22 you? 23 A Do you know if he got it? 24 Q It says here --25 A That is hearsay. Did he prove that he

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L I

2 had a copy of the card?

3 Q It says, I confiscated the AMEX credit 4 card with the complainants name on it.

5 MS. FORTE: Objection. this witness 6 did not prepare this document. She asked a 7 question and he asnwered it. 8 MS. STAROPOLI: This is his police 9 incident report form. His action. This

10 was used to press charges against Mr. 11 Burgess on his behalf. 12 MS. FORTE: I respectfully disagree. 13 If she wants to ask the witness if he ever 14 pressed charges against Mr. Burgess, 15 she can do that.

16 MS. STAROPOLI: He filed the complaint 17 and the Police Department took it among 18 themselves after receiving the complaint to 19 file charges based upon what he provided to 20 them in his complaint, your Honor. 21 So my question was, I said here that 22 if he had stolen the credit card, how would 23 he get the credit card?

24 MS. FORTE: The witness responded that 25 he did not know. He did not give him a

2 credit card, and he does not know how he 3 got a copy of it.

4 THE COURT: It is my understanding 5 that the he gave him authorization to use 6 the credit card.

7 MS. STAROPOLI: Correct. So I am 8 asking how he would be able to obtain a 9 copy of his credit card? That is my

10 question.

11 A Other than stealing it from me? 12 Q Can you please tell me who prepared the 13 loan documents?

14 A Denise Forte, my attorney. 15 Q Did you also ask her to prepare them for 16 your cousin? 17 A Yes.

18 Q Did you review them? 19 A Yes.

20 Q Did your cousin review them? 21 A Yes.

22 Q You paid for the preparation of the 23 documents?

24 A The company, S -- what the name of the 25 company was.

® ' 79

80 1 BAUCO\DlRECT EXAMINAT:ON\STAROPOLO! 1 BAUCO\DIRECT EXAMINATION\STAPOPOLO! 2 Q How much was paid? 2 A I don't remember. A few times. 3 A I don't recall. 3 Q Do you know what the conversations were 4 Q Do you recall when that was paid? 4 about? 5 A No, not exactly. 5 A Mortgages and Real Estate. 6 Q I am going to show you the bank 6 Q Did you ever speak to her about the 7 statement that we used before, we referred to. 7 business? 8 Please the one that is highlighted, tell me who it 8 A I don't believe so. 9 is to? 9 Q Why would you not speak to her about the 10 A Trivella, Forte and Smith. 10 business?

11 Q When was it? 11 A I was dealing with her husband the last 12 A 4/17/06. 12 12 years. 13 Q That was after the wire transfer from 13 Q Was it always the same business that 14 your cousin; correct? 14 Mr. Burgess was in? 15 A I don' have the date of the wire 15 A Same type of business. 16 transfer. 16 Q It was not this specific business? 17 Q How much was paid? 17 A No, it was not. 18 A $1,000. 18 Q Are you aware of who the owner of this 19 Q Did you have to pay any additional money 19 business were? 20 to your attorney towards the preparation of these 20 A Yes. 21 documents? 21 Q Who were they? 22 A No. 22 A Maura Burgess and Jannett Sergio. © 23 Q Have you spoken with Mrs. Burgess? 23 Q You have spoken to her about mortgages

. 24 A Yes. 24 and real estate; how come you never did speak to 25 Q When was that? 25 her about the loan?

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2 A I never did in the past. 2 Q Did Mr. Burgess ever tell you that his 3 Q But you wanted her to sign a document? 3 wife had nothing to do with this, that she never

CD 4 A Right. 4 signed the documents? .

.

5 Q Were you aware that prior to making the 5 A Did he ever tell me that?

I 6 loan that Mr. Sergio was arrested and convicted? 6 Q Yes.

l 7 A Yes. 7 A No. 8 THE COURT: Repeat that. 8 Q Did there come a time when you had a 9 Q Were you aware that prior to making the 9 conversation with your cousin with regard to the

10 loan that Mr. Sergio was arrested and convicted of 10 checks that were faxed to him by Mr. Burgess? 11 RICO, tax, evasion and fraud? 11 A Yes. 12 A I know that he was arrested. For what I 12 Q What did you explain to him about that? 13 don't know. 13 A I explained what they were.

14 Q Were you aware of any criminal action by 14 Q And what were they? 15 Mr. Burgess prior to making the loan? 15 A Read them off to me and I will explain. 16 A I knew he had a felony but for what I 16 Q I will get into the list after. That's 17 don't know. 17 fine.

18 Q After Mrs. Burgess submitted her order 18 In October of '07 did you have a 19 to show cause; did you speak to Mrs. Burgess? 19 conversation with an attorney or were you aware 20 A I don't think so, no. 20 that Mrs. Burgess had filed a report with the 21 Q Did you speak to Mr. Burgess? 21 police and they had spoken with the notary and 22 A I'm sure I did. 22 that her signature was actually forged? 23 Q Do you know what your conversation with 23 A Something to that effect. I don't 24 Mr. Burgess were? 24 remember exactly. I don't know if it was exactly 25 A There were many. I don't remember. 25 those words. I did hear something to that effect.

@ . 83 84

1 BAUCO\D!RECT EXAH!NAT!ON\STAROPOLO! 1 BAUCO\D!RECT EXAH!NATION\STAROPOLOl

2 Q Did she also advise you that we proposed 2 an agreement for half the money.

3 to resolve this matter? 3 Q What happened if he didn't pay it over 4 A No. 4 time? 5 Q Were you ever told that we were willing 5 A That we would go after him for the 6 to walk away and drop that matter? 6 difference and garnish his wages which we have 7 A I don't remember. You might have. I 7 been trying to do since that. 8 don't recall. 8 Q What about to his home?

9 Q A short time thereafter were you advised 9 A What about it? 10 that there was a handwriting expert hired and that 10 Q Did you put a lien against it? 11 he made a report and that her signature was 11 A Didn't pay to put a lien against it. 12 forged? 12 Q Why is that? 13 A Something to that effect, yes. 13 A After doing research it was like 14 Q Was it ever discussed with you that we 14 throwing good money after bad. There were, we

15 could try to resolve this matter? 15 found out after doing title searches, that he had

16 A To resolve this matter, no. Resolving 16 two mortgage against it. Putting a third was only

17 the matter means that someone was going give me 17 throwing good money after bad. 18 some money. No one ever told me that. 18 Q You didn't even try? 19 Q While the action was pending with this 19 A We did try by doing the title work.

~ 20 lawsuit with the papers going back and forth; did 20 That is trying.

21 you have a deal with Mr. Sergio; a new deal with 21 Q Did you seize any of Mr. Sergio's 22 Mr. Sergio with regard to payment? 22 accounts.

® 23 A Sergio came to us and offered to pay 23 A We did one of them. As the attorney ;

24 both of us half of the obligation over time, and 24 explained to you before it was an account that had 25 if he did not paid over time -- well we did have 25 to released.

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1 2 Q And they had no other checking accounts? 3 A None that we could find. 4 Q Were you aware if your attorney served 5 them with the document asking for their financials 6 or their assets? 7 A I don't know if my attorney did or not. 8 Q Have you received any payment with 9 regard to the alleged loan to Parkway South Inc.? 10 A Yes, I have. Interest payments. 11 Q About how much is that? 12 A Exact amount, all I can tell you is we 13 got payments up until a month before we served 14 them. So whatever that time was that was what we 15 go paid. 16 Q You don't recall the amount that you 17 received? 18 A Its mathematics. If we served them in 19 May we got paid until March. Go backwards. If I 20 am guessing it was probably 8, 9 months. I'm 21 guessing. 22 Q Had any of your family members received 23 money from this business? 24 A Yes. 25 Q Who?

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1 BAUCO\DIRECT EXAMINATION\STAROPOLOI

2 regard to that? 3 A No. 4 Q There was a lease? 5 A A leased vehicle. 6 Q A truck? 7 A A truck, right. 8 Q And you said? 9 A That my son personally signed for him

10 and he would be compensated for it on a ~onthly 11 basis. Get paid. 12 Q What happened to that vehicle? 13 A That vehicle I ended up taking back 14 because he stopped paying it, and it was returned. 15 Q Was it an obligation of Parkway South 16 Inc. or an obligation of Mr. Burgess's 17 individually? 18 A It was individually an obligation of 19 Rick Burgess. When we went into the, what you may 20 call the loan, it became part of the business. 21 Q You have an individual lease that was 22 signed by your son, so I understand it, that was 23 for Mr. Burgess. Once the agreement was reached 24 which was this promissory note you said, let's put 25 it into the business?

86

1

2 A My son Michael Bauco. 3 Q Why? 4 A A couple of reasons. One reason is my 5 son signed the lease on the vehicle. Part of that 6 was he would be compensated on a weekly, monthly 7 basis which that is other money he owes that he 8 didn't pay. That is number one. 9 When this loan went into effect part of 10 the deal was since my son did the work he was 11 entitled to some commissions due, and they agreed 12 that when they got the $150,000 they would pay his 13 money due which was a combination of things. That 14 check was for $5,000. Probably one of the ones 15 you were going to ask me about. 16 Q What was the work that he did? 17 A I explained to you before. My son was 18 trying to get him a line of credit. Do you recall 19 that? The $100, 000 which they couldn't do. That 20 would have been the work that he would have been 21 entitled to a commission. Part of the deal was 22 that he would get that commission, which he did. 23 Q Is there anything in writing? 24 A No. 25 Q Did Mrs. Burgess sign anything with

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1 BAUCO\DIRECT EXAMINAT!ON\STAROPOLO!

2 A Before we had the loan, it was with Rick 3 Burgess, and then once he sign the loan -- it was 4 the business regardless. It was Rick Burgess. It 5 was the business. 6 Q I don't understand how Rick Burgess is 7 the business when it was owned by Maura Burgess 8 and Jannett Sergio? 9 A Rick Burgess was running the business. 10 Period. The only reason Rick Burgess was not on 11 the ownership was he could not get licensed for 12 towing and what not. That is the only reason why 13 he was not on the business corporation. Strictly 14 other than that he would have been on the 15 business. 16 Q So Mrs. Burgess wasn't really an owner 17 then? 18 A Excuse me? 19 Q Mrs. Burgess was an owner on paper only? 20 A Yes. 21 Q But you still made her as an obligation 22 to this loan personally? 23 A Yes, why wouldn't I? 24 Q Because she is not an owner of the 25 business?

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89

A Sure she is. MS. FORTE: Objection as to relevance.

objection as to the form of the question. Cumulative ••

THE COURT: Objection sustained. Let's move on. Q Is this the reason that it was never

discussed with Mrs. Burgess? A Like I said, it was never discussed

before. This is not the first time that I lent him money. I never discussed it with her before, why would I have now?

Q Because before you never had Mrs. Burgess sign a document?

A You didn't ask me that question. Q I am asking you now. A Ask me what? Q Before the other loans Mrs. Burgess was

not an owner of the business; correct? MS. FORTE: Objection. Before what

other loan? MS. STAROPOLI: He said he has made

several loans with him, your Honor, and that he never discussed anything with Mrs.

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BAUCO\DIRECT EXAH:NATIOR\STAROPOLOI

A Excuse me? Q In addition to your son receiving money

has any of your other business associates received any money from this business?

A Yes. Alex Biagoni and Webuilt? Q Can you explain to me who Alex Biagoni

is? A He is a friend of mine. A close friend. Q Why would he be getting money? A Because when both Steve and Rick came to

me -- when Steve and Rick came to me and asked, do you think you get me some interim money until the time we get a loan? I said I would see what I could do. And I did. Alex and the company that is how the monies were returned.

Q Any promissory notes? A No, it was verbal. Q Verbal on your behalf or can you explain

more of the details? I am a little confused how this all came about.

A I just said, he asked for some interim money until he got his money. I was able to get -·Alex lent money to Rick before this on my say so, prior years. So he knew who Rick was, and

90

1 2 Burgess. Mrs. Burgess was never an owner 3 of the other businesses. She just became 4 involved with this because it was a OMV 5 license. 6 I was asking him was that the reason 7 why you never discussed this? He said, 8 that he never did before. When I asked him 9 why didn't you discuss it, and I was 10 objected, why had he not discussed this 11 with her at this time knowing that she was 12 the owner. 13 A I am totally confused. Ask me the 14 question again? 15 Q What made you not speak to Mrs. Burgess 16 with regard to this loan when you knew that she 17 was the owner with this business? 18 A Like I said, I lent money in the past 19 and never spoke to her. 20 Q Was Mrs. Burgess an owner before on the 21 other businesses? 22 A I think she might have been. I am not 23 sure. 24 Q You were so sure here but you are not so 25 sure about before?

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1 BAVCO\D!PECT EXAM!NA~!ON\STAROPO~O:

2 he lent him the money that was supposed to be for 3 a short period of time. I forget what that period 4 of time was. When he got the money he would repay 5 him. 6 Q How much money did you ask to borrow on 7 behalf of Parkway South Inc.? 8 A I don't remember the exact amount. I 9 don't recall. It was something less than what was 10 given back. There was interest in that money. 11 Q So less than $10,000? 12 A No. Both Alex, so you understand it, 13 Alex Biagoni and Webuilt are the same. One is a 14 company and one is personal. Together, take those 15 two numbers, something less than that was lent to 16 him. 17 Q How did the money get to Alex Biagoni to 18 Parkway South Inc.? 19 A Through Alex. 20 Q So Alex approached them? I am trying to 21 find out the details? 22 A I just told you. Alex agreed to lend 23 them the money. 24 Q Did Alex give the money to Parkway South 25 Inc. or to you?

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"

~

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1 ;~" .. ' ., ;..- "' :· ~ •• ·\ :-t • ~; :\: : . !'\' ... : ;~ ~ ,, j •.•

2 A I don't know if he gave it to me, to him 3 I don't recall. All I know is that he lent him 4 the money. 5 Q At this time, how did you know Webuilt 6 or Alex Biagoni? 7 A I knew him for years. We did business 8 together. I would bring him work and some I would 9 finance and I would be compensated. 10 Q Was he a tenant in your building? 11 A Was he tenant in my building? 12 Q Yes. Was his place of business in your 13 building? 14 A No. 15 Q I am showing you a piece of paper that 16 is from a business directory and it says, Webuilt, 17 Inc. What is the address for that? 18 A 550 Franklin Avenue. 19 Q Is that the building that you own? 20 A Own? 21 Q I said owned? 22 A I owned it but not at the time. 23 misunderstood. 24 Q Not at this time? 25 A At that time. I did not own the

95

1 BAUCO\DIRECT EXAMI?1AT!O?J\STAROPOLOI

2 he receives no money from this company.

3 This is all part of what -- the money 4 he got back is more than the money he even

5 lent, your Honor. I can show that through 6 other businesses. This is just one of

7 those businesses that got money back on his 8 behalf. 9 MS. FORTE: Judge, clearly in this

10 case it is Mrs. Burgess's burden to show

11 that this action is frivolous and that my

12 clients somehow engaged in frivolous

13 conduct warranting their payment of her

14 attorney's fees. 15 One would think that instead of going 16 through this conspiracy theory, this

17 torturous conspiracy theory, that

18 Ms. Staropoli and Mrs. Burgess could have

19 subpoenaed Rick Burgess to testify today. 20 If her analysis is correct that Frank 21 Bauco never loaned money to S and S

22 Collision or that I don't know what fault

23 she found with Mr. Gambardella, that he

24 didn't engage in due diligence in looking

25 into the company, it is undisputed that

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1 !\1\.. • • . ;• !" : ~ • :\!-'. . :. ·\ ..

2 building when he was there. 3 Q You did not own the building when he was 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

23 24 25

there? A No.

MS. FORTE: Judge, objection as to relevance.

MS. STAROPOLI: Your Honor, the relevance is that this man has plenty of business associates. He is actually -- we have other proof that he had other business with this Webuilt which is very suspicious.

We have also been told that he is actually a silent owner of this business, and he his get repayment through this business. This was all done again as a scam. Mrs. Burgess will tell you --

Your Honor, I am trying to speak and it is very distracting when the other side is making comments back there.

This man lent, I don't believe lent any money, your Honor, from what we have been told. Did not lend money. He has a business that he owns that money is funneled through that. He is saying that

96

BAUrO\DIPECT EXAMI?JAT!O:i\STAROP<'!.O!

Rick Burgess ran the business on the day to day affair.

He should be here and he should be on the stand testifying, no, Mr. Bauco never gave me any money.

Mr. Bauco credibility testified about the money that was loaned, and the relationship with Richard Burgess over the years.

To have Ms. Staropoli waste this Court's time and try to poke holes and say we have information, we have evidence to believe, everything that she is saying is irrelevant and tenuous to the issue that is before the Court.

MS. STAROPOLI: That is not true. Mr. Bauco, you will see through other checks had gotten money through other companies. This is something that this Betty Rivera notary, has been used on another litigation. That is why the police are now investigating.

MS. FORTE: So then it should appropriately be before the police

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department. It is not an application for a attorney fees.

97

MS. STAROPOLI: I am making an application based upon not only his frivolous but fraudulent acts, your Honor, these are fraudulent acts committed against

Mrs. Burgess -- Mrs. Burgess will testify of the conversation that she knows about and she was privy to.

THE COURT: When we get to that testimony.

MS. STAROPOLI: I am not saying now. That will explain also what has been going

on. I am simply asking, these are monies

that supposedly went out that are associated with him. That he is saying that he never received payment. If you did receive payment why would pursue after her. Another frivolous action. He got money plus. He has no evidence any of these documents that he is saying. He has never produced evidence except for one credit card bill.

99

BAUCO\DIRECT EXAMINATION\STAROPOLOI

was repaid. The same thing for Alex Biagoni.

Separate and apart from Mr. Bauco's money and Mr. Gambardella's money, lent money on a short term basis. If she doubts that, the person we should be asking is Mr. Richard Burgess. My client is giving explanations.

MS. STAROPOLI: No documentation. It is so funny how he is involved with all of these things. His son, and there is no documentation to prove any of it. This is all how these people are meeting Mr. Burgess through Mr. Bauco.

Mr. Burgess, who just got out of incarceration again for something else has left the State. So I can't get Mr. Burgess here because he is in Florida, in Daytona.

If you would like me to get him on the phone, there so much hostility between the two of them that they are not -- there is an order of protection against each of them.

I can show that money -- he has been

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98

THE COURT: You are saying that he got this money back?

MS. STAROPOLI: No. I am saying part of it he did with the credit card. He got money back, and also --

THE COURT: Money back from the credit card?

MS. STAROPOLI: Correct. He was paid in full and there were no additional money lent.

MS. FORTE: If Ms. Staropoli is going to make that

representation, I would like to see exactly what monies were paid back to Mr. Bauco.

She pointed to one check which was paid to Michael Bauco. He explained that. That was his commission for trying to broker the deal.

There was one check that she referred to that was made payable to Webuilt. Mr. Bauco testified that Webuilt separate and apart from his $75,000 and from Andrew Gambardella's $75,000, lent money on a short term interim basis to business and

100

BAUCO\DIRECT EXAMIHATION\STAROPOLOI

2 paid in full for the credit card whether it 3 be through his other businesses. There are 4 other businesses which he received money 5 through. There is no documentation to 6 prove that he even made a loan, your Honor, 7 which he continued to pursue after her 8 after he got $27,000 worth of credit card 9 debt, which has been paid plus but you can 10 still continue go after her even though you 11 know there is no legitimate loan. 12 I have asked for documents. All I 13 have gotten is credit cards and cash. She 14 is the owner and they are going after her. 15 Don't you think that she is entitled to ask 16 for those documents? That is what I have 17 repeatedly asked for and all I keep on 18 getting is that they are cash maybe, this 19 or that. He gave the credit card 20 statement. That is it. 21 THE COURT: Counselor, please continue 22 your examination of this witness. 23 MS. STAROPOLI: Yes, your Honor. 24 Q Please continue and explain to us how 25 Webuilt or Alex Biagoni got involved with Parkway

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1 2 South Inc.? 3 A I thought I answered that? 4 Q Can you refresh my memory, please? 5 A I went to Alex and asked him if he would 6 lend what's his name the loan. He said, yes. So 7 he offered the money. 8 Q So you are like a broker for Parkway 9 South Inc.? 10 MS. FORTE: Objection, as to from the 11 of the question. 12 THE COURT: I will allow it. 13 A As I said before --14 Q Can you please answer the question. Are 15 you a mortgage broker or a loan broker? 16 A No, I am no broker. 17 Q You are going to everyone and asking 18 them to lend money? 19 A Who is everybody? 20 Q You went to your cousin? 21 A Right. 22 Q And to Alex Biagoni and to Webuilt? 23 A Right. 24 Q But you not acting as a lending broker 25 or lending mortgage?

103

1 BAUCO\D:RECT EXAMINATION\STAROPOLOI

2 A With Webuilt, no. I might have lent 3 them money. That's it. 4 Q You might have. When did you might have 5 lend them money? 6 A I don't know. Off and on. 7 Q Refer to that credit card statement I 8 gave you right there. 9 A Yes. 1 O Q On the top three or four there are 11 specific notations to L Jam? 12 A Yes. 13 Q Please explain those to me please?

14 A Not exactly. Probably had something to 15 do with construction. 16 Q For whom? 17 A It's pretty hard for me to answer that 18 with just this statement. 19 Q Construction on your home? 20 A I have to go back. 21 Q I want give you these two. On 22 December 21st, there is a charge to L Jam? 23 A Yes. 24 Q How much was that for? 25 A For 59430.

102

!~1\:•,· \'-:'!F!-:,·; !-.\A:-t::;,\:: ':;\;:'~/\? 'i : : 1

2

3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A No. I go to my friends and ask if they are looking to earn some money.

Q But there is no documentation? A No. Q Was the month given to you? A I don't recall. Q Isn't it true that you are a partner

with Webuilt? A No. Q You have no affiliation with Webuilt? A Q

We built?

I am not a partner in Webuilt. Do you have any affiliation with

I know them. A Q Do you have any other affiliation with

Webuilt? Other than knowing them? Yes. No.

A Q A Q Have you done anything for Webuilt?

MS. FORTE: Objection to the form of the question. Have you done anything?

MS. STAROPOLI: Have you had any kind of business relationship with Webuilt?

104

1 BAUCO\DIRECT EXAMINATION\STAROPO~Ol

2 Q On your credit card is there a charge on 3 your credit card statement? Is there a charge on 4 12/21 L Jam? 5 A Yes. 6 Q How much is that for? 7 A Same amount, 59430. 8 Q On the new L Jam bill; who does it say 9 that purchased the product? 10 A We built, Alex. 11 Q On 12/20 is there another receipt there? 12 A Yes. 13 Q How much is that for? 14 A 58194. 15 Q On 12/20 on your credit card statement? 16 A Yes. 17 Q Is there a charge? 18 A Yes. 19 Q How much is that for? 20 A The same amount, 58194. 21 Q Who charged that charge? 22 A Webuilt. 23 · Q And who specifically? 24 A Alex. 25 Q Are you sure it says Alex?

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ID .

105

1 :~A·•· i1:·:f'f :' F.•,1\!'-!:~:\;:,t;\.':'A!'1.'t'1: ,:

2 A He says Alex on top here. 3 Q What does the charge slip say? 4 A I can't make that out.

5 Q Does that look like Alex? 6 MS. FORTE: Objection. the witness 7 answered, I can't make it out. 8 Q What can you make out? 9 A Philip. I know who that is now. 10 Q You gave permission for Webuilt to 11 charge on your credit card? 12 A Yes. 13 Q You have no affiliation with them, no 14 business affiliation with them? 15 A Not with Webuilt, no. 16 Q I continue on. 17 Has any other businesses that you own 18 received money from Parkway South Inc.? 19 A Might have, I don't remember. 550 would 20 have. 21 Q What is 550? 22 A One of my companies. 23 Q Why would they receive money from 24 Parkway South Inc.? 25 A I probably lent them money.

107

1 BAUCO\D!PECT EXAMINATIOH\STAROPOLOl

2 tell the Court what you said. 3 If you look at paragraph 8, tell the 4 Court what you said? 5 A It says $75,000 was loaned to the 6 business was made in three parts. Mrs. Burgess 7 borrowed half the business, $35,000. This amount 8 comprised of several miscellaneous loans and 9 credit card bills on behalf of Mr. Burgess.

10 Q Now the credit cards total 27? 11 A Right. 12 Q What are these miscellaneous loans? 13 A $13,000 in cash. 14 Q So we have $27,000 in credit card 15 charges? 16 A Right. 17 Q And $13,000 in cash? 18 A Right. 19 Q What is the total of that? 20 A $39,324.98, I believe. 21 Q How do we come up to $75,000? 22 A There was previous money owed to me, 23 like I explained to you earlier, that becomes part 24 of this note. 25 Q How did you pay that? It didn't say

106

2 Q Do you have a promissory note lending 3 them money? 4 A I don't think so. 5 Q When was this money allegedly lent? 6 A You are asking me a broad question, I 7 gave you a broad answer. 8 Q How about what year? 9 A I don't remember. If you tell me I can 10 go back to my records and I can check it. 11 Q You are here to give testimony as to --12 A If I knew what the question was I would 13 be able to research. You want me to go back a 14 year, two years, I don't know. 15 Q You can remember specifically that you 16 lent cash and money --17 A I wasn't specific. I told you between 18 cash and checks. I wasn't specific, if you were 19 you recall. I said cash and checks because I know 20 that it was a combination of two. If you ask me 21 the exact amount, I can't give it to you. 22 Q We did ask you the exact amount in your 23 affidavit; and what did you say? 24 A I don't know. What did I say. 25 Q I will give you your affidavit You can

108

1 BAUCO\D!PECT EXAMINATIOH\STA?OPOLO:

2 that in your papers; correct? 3 MS. FORTE: Objection, as to the form 4 of the question? 5 MS. STAROPOLI: I will reask it. 6 Q Does it state in your papers that there 7 was a previous loan? 8 A I don't see it here but I know on the 9 document that I signed --

10 Q Does it state --11 MS. FORTE: May we allow the witness 12 to read --13 MS. STAROPOLI: I did. 14 A -- a previous balance. I don't see it 15 on this document. 16 Q Is that a document that you signed? 17 A Yes. 18 Q So we have $27,000 plus $13,000. You 19 have only given is proof of is the $27,000 in this 20 document; correct? 21 A Yes. 22 Q And the $13,000 dollar you give in cash? 23 A Yes. 24 Q Do you have receipts for those? 25 A I believe there was one --

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Onetime? Several.

109

1

2 3 4 5 6 7 8 9

Q

A

Q Several times $13,000 over what time period?

A Q A Q

Excuse me? Over what time period? I don't recall. I will take that back.

10 So as I started to say, that only totals 11 20 -- $40,000; correct? 12 A That document, yes. 13 MS. FORTE: I object because she is 14 mischaracterizing what the document says. 15 MS. STAROPOLI: I did not. Your 16 Honor, I asked him to look at document. 17 MS. FORTE: She asked him look to look 18 at the document and interrupted him about 19 three times. Let the document, if we are 20 going to offer it into evidence, the 21 numbers clearly total up to $75,000. We 22 are not playing the shell game. That is 23 the same document. 24 lfwe read paragraph 8, 9 and 10 you 25 add the three numbers it equals $75,000.

111

1 BAUCO\DIRECT EXAMINAT!ON\STAROPOLO!

2 Q Did you produce any other credit card 3 expenses charged on behalf of? 4 A Did I produce them? I'm sure there 5 were. There was obviously some before and after. 6 Q The only thing that was produced in your 7 document was this one credit card bill totaling 8 $27,000? 9 A Right. With a total of $75,000?

10 MS. STAROPOLI: Your Honor, he is 11 giving hand gestures? 12 A He told me to take my hand away from my

13 face. 14 THE COURT: We will take a recess at 15 this point. We will break for lunch. 16 MS. FORTE: Your Honor, is 17 Mr. Gambardella excused? 18 THE COURT: Yes, he can be excused. 19 MS. FORTE: Thank you, your Honor. 20 21 22 23 24 25

THE COURT: Let's resume at two o'clock.

(Whereupon, recess was taken.)

If you want to railroad the witness into

saying --THE COURT: Is that so?

110

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2 3 4 5 6 7

8 9

MS. STAROPOLI: Your Honor, the problem is here, I don't know, your Honor.

The first paragraph says I have given him $35,000 in loans and credit card bills.

MS. FORTE: In addition --10 MS. STAROPOLI: Then it says the, in 11 addition he charged another $27, 000, 12 then in addition I gave him another $13, 13 000. 14 I don't know if that $35, 000 which he 15 could have stated. I didn't stop him from 16 reading. 17 MS. FORTE: But she didn't ask him 18 that question. 19 MS. STAROPOLI: I did. 20 THE COURT: You can inquire on 21 redirect. 22 Q Did you submit any documentation to 23 prove anything else of the $27 ,000 in credit card 24 bills? 25 A Yes. A document.

112

1 BAUCO\D!RECT EXAMINAT!ON\STAROPOLO!

2 (FRANK BAUCO}, Resumed, having been 3 previously duly sworn, testified further, 4 as follows:) 5 Q You stated you had made several loans 6 over the years to Mr. Burgess, correct? 7 A Yes. 8 Q You said also that some of the loans in 9 this 75 were prior to this promissory note; 10 correct? 11 A Yes. 12 Q I want to show you this affidavit of? 13 Judgment of confession. Who is that allegedly 14 signed by? 15 A Maura Burgess. 16 Q Can you read the part where it says 17 under number three? 18 A Number three? 19 Q Under number three. Where it says, 20 Frank Bauco loan? 21 A Frank Bauco loan Parkway South 22 Collision, d/b/a S and S Collision the sum of 23 $75,000, on April, blank, 2006, a promissory note 24 was executed to evidence this loan. It did --25 Q That's fine.

Page 88: Burgess 143 Pages

113 114 1 !~A•: : :~·r : ".•:A!-~.~:A:·: 1S,.":'A~ 't .•:,'; 1 :,A .. ,•1;:;q. ~ ~·:\~~ ·:~"i.: ·: ,:,.;;., 2 Pursuant to that statement this loan was 2 A The exact amount on the document that 3 paid as of April blank 2006? 3 you showed me before.

6 4 A According to this statement. 4 Q The document that I showed you before ~·)' ·. ''l.1.r

5 Q This was a document prepared by your 5 dealt with monies prior? 6 counsel? 6 A And after. 7 A Yes. 7 Q Can you differentiate which was prior 8 Q Did you lend any money as of 8 and which was after? 9 April 2006 -- we will assume for Court that -- 9 A Everything on those documents and those

10 because it was notarized on the 18th -- it was on 10 dates that are on the credit card statement. 11 other about the 18th? 11 Q So $27,000 of credit card statements, 12 MS. FORTE: Excuse me; what was your 12 from your AMEX, was done or about April 18? 13 question? 13 A Right. 14 Q Did you loan any money on or about 14 Q That entails $27 ,000? 15 April 18, 2006 to Parkway South Inc.? 15 A Right. 16 A I am not sure. On that date you are 16 Q Please explain when the other $48,000 17 saying? 17 roughly, was done after the promissory note? 18 Q Around then. Not on the exact date 18 A Most of it was prior. 19 date or after? 19 Q Based upon this document then, 20 A Yes. Before and after. 20 Mrs. Burgess was only liable as of that date? 21 Q This promissory note is only for April 21 MS. FORTE: Objection as to the form 22 of 2006. This affidavit. So as of April 2006 did 22 of the question. 23 you loan -- 23 Q Pursuant too what you just read, it 24 A Yes. 24 states that you loaned money to Parkway South Inc. 25 Q What did you loan? 25 or $75, 000 in April blank of 2006?

@ 115 116

.

1 BAUCO\DIREcr EXAMINATION\STAROPOLOI 1 BAUCO\D!RE:T EXAM:r:Ar:~:I\S7AP~~o~~= 2 A According to this document, yes. 2 A Yes. 3 Q Correct, so the loans were made prior? 3 Q The full amount of $75,000? 4 A Prior? 4 A No. 5 Q A portion of them were made prior? 5 Q Now you earlier said also that you had 6 A Correct. 6 been doing business with Mr. Burgess for about 12 7 Q So Mrs. Burgess would only have a 7 years? 8 liability based on this document; correct? 8 A Give or take. 9 A I'm not a lawyer. I don't know. 9 Q In what capacity?

10 Q Based on what you have read? 10 A I lent him money. 11 MS. FORTE: Objection. Asked and 11 Q Was he doing business as other 12 answered. 12 businesses or solely with this business? 13 Q As explained to you by your lawyer -- 13 A Car related body, car related business. 14 was this document explained to you by your lawyer? 14 Q Do you know what happened to those other 15 A I am sure it was. 15 businesses? 16 Q You said you reviewed it? 16 A No. 17 A Yes. 17 Q Did you ever ask him to previously 18 Q Based upon the what is stated there it 18 provide you with a promissory notice? 19 says that the sum of $75,000 on April of 2006; 19 A Not a promissory note. Yes. I take 20 correct? April blank of 2006? 20 that back. A promissory note, yes. 21 A Yes. 21 Q When were those issued? 22 Q Did you loan them the full amount of the 22 A The first time I did business with him. @ 23 $75,000 on blank of 2006? 23 Q When was that? .

.

24 A Not on that date, no. 24 A I believe 10-12 years ago. '97, give or 25 Q Did you loan it after that date? 25 take.

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t~ ,, ·~· ~· ~, ~ : ;; F · : r: x t\:·~: ?; ,, :- : , !~ , ~:-AR,' i. •: , ' ! 1 Q Have you provided that in your 2

documentation? 3 A In my documentation? Not in my 4

documentation. 5 Q How many times did you ask him to write 6

a promissory note for you? 7 A This would have been the second time. 8 Q How many loans have you made to him 9

previously? 10 A After 10 years, a fol 11 Q So in the 10 years you made a lot and 12

you only asked for two promissory notes? 13

A Correct. 14 Q Why all of a sudden did you ask for a 15

promissory notice? 16 A It was not just me. I brought my cousin 17

into it. 18 Q Why didn't your cousin make one and not 19

you? 20 A It was a joint thing. He was going in 21

with me. 22 Q Have you made other loans to Parkway 23

South Inc. collision beside this one? 24 A Yes. 25

119

BAUCO\DIRECT EXAM!NATION\STAROPOLOI 1 years and I have always gotten paid? 2

Q And he has always been this desperate? 3 MS. FORTE: Objection as to the form 4

of the question. 5 THE COURT: I will allow. He can 6

answer it. 7 A I saw all the work he was doing. It was 8

not like I was blind to it. Sometimes you are 9

short on money. 10 Q Did you ever check his books? 11 A No. 12 Q With his other business, did you ever 13

check his books? 14 A No. 15 Q Did you know that his other businesses 16

failed and the money wasn't there, and he was bad 17 businessman? 18

A I got paid. So I don't see how he was a 19 bad businessman. 20

Q Do you know how many other businesses he 21 has had over the 12 years? 22

A He did a few. 23 Q Four? 24

A He was a used car dealer and auto body. 25

118

fl:\ .• \: : ii!': . 7 ~ • ,;;.1 •; :\: • ;. ."\.!·

Q Did you ever ask Mr. Burgess to write a promissory note?

A No. Q Did you ever ask Mrs. Burgess to write a

promissory note? A For this loan? Q For anything to do with Parkway South

Inc.? A With Parkway South Inc., no. Q You stated earlier that you knew that

Mrs. Burgess was an owner? A Yes. Q Why didn't you ask Mrs. Burgess to

previously do a promissory note with the money that you lent?

A Previously with this company or anytime? Q With this company? A Again, it was just me. Q If this was such a good investment like

you said before, correct me if I wrong, and the business was so desperate for money, because you had to do an interim loan you said; why did you think this was such a good investment?

A Because I dealt with him for 10, 12

BAUCO\DIRECT EXAM!NATION\STAROPOL01

Q Was it four, five; take a guess? MS. FORTE: Objection. THE COURT: Sustained.

Q You also said earlier that your son tried to help Mr. Burgess get a loan?

A A line of credit. Q What does your son do for a living?

120

A Right now he does IT work. Computers. Q Backthen? A He was doing a few things. He was

getting loans for people. Q He was a mortgage broker? A He wasn't a mortgage broker. He was,

how would you say it, he was involved with people in the business and he would bring them business and they'd bring him business and he would get a finder's fee for it.

Q He worked for a company? A Not one company. Q Would the finder's fee come from the

company that made the loans? A No. Q They came from the individuals when they

made the loans?

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121 122

1 1 ;1 ,\ ·• · ~ · \ : : i' ~ · :' :0 :-. t\:·!: :; A:· ; · :. :~ .. \ r i

2 A Correct. 2 A I believe I did. 3 Q Who negotiated this deal with 3 Q Could you tell us what those terms were? 4 Mr. Burgess? 4 A I don't remember exactly what the terms 5 A When you say negotiated; negotiated what 5 were. The interest was -- finder's fee or what 6 deal? 6 the commission was was actually a few dollars more 7 Q How did Mr. Burgess get in touch with 7 on top of that. The exact number I don't know. 8 your son? 8 It was part of the $5,000. 9 A Through me. 9 Q Isn't it true in the lending business

1 O Q Were your privy of those conversations? 11 A Yes. All the time.

10 you don't get commission on the loan until the 11 actual loan is made?

12 Q How did you go about -- 12 A Excuse me? 13 MS. STAROPOLI: Strike that. 13 Q You said the loan was never given? 14 Q When they were working out some kind of 15 deal and lending the money; who negotiated the 16 terms? 17 MS. FORTE: Objection. The terms of 18 the loan or the terms of his commission? 19 Q Terms of loan and then the terms of the 20 commission? 21 MS. FORTE: Cumulative. 22 A The terms of the loan came from the 23 lender. 24 Q Who negotiated the terms for his

14 A It was given. 15 Q You said the line of credit was not 16 given because Mr. Sergio could not leave the 17 equity? 18 A Right. 19 Q So they could not accept the loan 20 because the terms were not acceptable? 21 A Correct. 22 Q Then the loan was denied? 23 A Right. 24 Q Is it normal in a situation for a

25 commission? 25 commission to be paid out when there is no loan?

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

123

BAUCO\DIRECT EXAHINATION\STAROPOLOI 1

A You are right. 2 Q That's normal? 3 A You don't pay unless you get the money. 4 Q But your son was paid? 5 A And he got the money. 6 Q Who did he get the money from? 7 A From myself and from Andrew Gambardella 8

which was -- 9 Q That was different deal; correct? 10 A It was part of this deal. It became 11

part of this deal prior to them getting any money. 12 Q You stated earlier that your son went 13

someplace else to get a line of credit and that 14 didn't work out? 15

A Exactly. 16 Q When that didn't work out you did 17

several deals with Mr. Burgess, approached your 18 cousin; correct? 19

A ~. ~

Q And said to him, do you want to invest 21 in this business I have invested many times ago; 22 correct? 23

A ~. ~

Q How is your son in that? 25

124

BAUCO\DIRECT EXAHINATIOU\STAROPOLOI

A In? Q In you lending money? A He was involved with brokers. He also

got a loan for Mrs. Burgess as well. Q When did he get a loan for Mrs. Burgess? A For her home. He refinanced her home.

It was the same as we are talking about. Q She refinanced her home much later than

that. You are saying that your son was

involved with you lending money? A Involved with me lending money? Not

really. Well, yes and no I would go to him if someone needed a mortgage.

Q How about lending money to Parkway South Inc.?

A Yes. You can say that, yes. Q So your son came up and said, Dad, do

you want to lend money to this business? A No. Q Was this prior them signing the

promissory notice? A Yes. Way prior to that. Q You agreed to lend them money prior to

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® -~

125

1 B ,, "! · '\ :~- : r: r · '!" ~ ·.; ,~, M : ~l A :' : ~; \ ~~ : AR ._1 i ,1 :. u l

2 promissory note but you hadn't lent them the money 3 yet; correct? 4 A Correct. Well other than the money I 5 had previous lent them. 6 Q Which was no part of this promissory 7 notice? Based upon the terminology --8 A Base upon the terminology but not based

9 upon our agreement. 1 O Q Mrs. Burgess is not privy to the 11 agreement; is she? 12 A I don't know that. 13 Q Did you speak to Mrs. Burgess?

14 A No. 15 Q She is nor privy to the agreement with 16 you? 17 MS. FORTE: Objection. this is verging 18 on argumentative? 19 A No it is not, your Honor. 20 THE COURT: Objection is sustained. 21 Let's move on. 22 Q Also earlier -- I'm not sure if it was 23 you testifying or your cousin -- it was stated 24 that Mr. Sergio signs an agreement where he said 25 he would be half responsible and he made up a

127

1 BAUCO\DJRECT EXAMINATION\STAROPOLOI

2 with Webuilt. You said previously that you didn't 3 have one? 4 A I didn't have a legal partnership; if 5 that is what you are asking. 6 Q No, I said, did you ever any business 7 relationships with them? 8 A With Webuilt? 9 Q Yes.

10 A No. If you call that a business

11 relationship. I don't know what you identify as 12 business relationship? 13 Q Did he make business charges on your 14 credit card? 15 A He didn't. I did. He would come to me

16 sometimes and ask me if I could charge on my card.

17 I would call up and make charges. 18 Q That's odd because these charges are not 19 even signed by you they were signed by employees 20 ofWebuilt? 21 A That's correct.

22 Q Then you didn't call? 23 A I didn't call them. The people at the

24 desk would call me to verify it was me and they

25 signed it.

1

2 3 4 5 6 7 8

126

payment schedule? A That's correct. Q Why would you only accept half the

payment from Mr. Sergio when he is jointly and separately liable?

A Why? Q Yes.

9 A Because he was technically half 10 responsible and he basically said that if he 11 didn't get the full amount he did loose then he 12 would make up the difference. But that was 13 verbally.

14 Q They are jointly and separately liable, 15 as your attorney explained. Why would you let Mr. 16 Sergio go off for half of the amount of money? 17 A That is what I agreed on. 18 Q You are releasing his obligation with 19 half the money? 20 A I didn't release anything yet He 21 didn't pay me. 22 Q But pursuant to this new agreement? 23 A If he would have paid me, yes. But he 24 didn't pay me. 25 Q We are going back to your affiliation

128

1 BAUCO\D!RECT EXAMINAT!ON\STARDPO~Ol

2 Q What if I told you that I spoke to 3 Webuilt and they said that Mr. Biagoni did this 4 all the time. 5 A Excuse me? 6 Q The Mr. Biagoni would use your credit 7 card. That you don't have an account there? 8 A Don't have an account where? 9 Q Webuilt doesn't have an account there?

10 A Account where? 11 Q At L Jam. We are talking about at L 12 Jam. 13 A How can he have an you account there if 14 I'm giving him a credit card? Of course he didn't 15 have an account. 16 Q They would just call you randomly? 17 A Of course. Because it wasn't his credit 18 card. It was not his name on there. It was mine. 19 Q So they were just going to call a person 20 and it could be anyone, and they are going to say; 21 can we charge on your credit card and you are 22 going to say, yes? 23 MS. FORTE: Objection. If counsel 24 wants ask a direct question, she can. But 25 to say if they are just going to call

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1 !;A:.:1.·,···:-:?r:·:· r-.,\M:N,,;: ir;\~:'1\FJ:,)t.': : 1 HA:· . '\ :' ! fJ F ·; ~ :• ... \~~: ':/\ :· ~ ;; ·: : !d\ 1

2 anyone or -- 2 Q These credit cards were swiped through?

3 THE COURT: Objection to the form 3 A Maybe. I don't recall. Maybe some of

~ 4 sustained. 4 them were, some of them aren't. Sometimes I just -t! : ' .. •:·:' 5 Q You are saying that people at L Jam -- 5 give the. account number over the phone which is

6 do you know what L Jam is? 6 not unheard of.

7 A It is -- looks like a lumber yard. 7 Q Sometimes you would just let the

8 Q Do they do more than lumber? 8 employees of L Jam just take your credit card and

9 A They may. 9 go there? 10 Q They sell construction supplies? 10 A Yes. Sometimes. As long as I know it, 11 A Yes. 11 yes. 12 Q What is Webuilt? 12 Q You have no business relationship with

13 A Webuilt is a builder. 13 them?

14 Q These employees would take your credit 14 A With whom?

15 card? 15 Q We built? 16 A No. 16 A How do you define business. If you 17 Q Can you please explain the process? 17 define what I did as a business relationship,

18 A They would call me and I would give it 18 then, yes. I don't consider that a business

19 to them over the phone. Give the what you may 19 relationship. 20 call it over the phone, the account number over 20 Q What do you define that relationship? 21 the phone. 21 A I lent him money. 22 Q If I refer to the charge slips they were 22 Q Do you have a promissory note for that? 23 actually swiped through? 23 A No.

24 A I don't remember each case. Most cases 24 Q Were you paid back that money lent?

25 I would give it to them. 25 A Yes.

© 131 132 '

1 BAUCO\D!RECT EXAMINAT!ON\STAROPOLOI 1 BAUCO\DIRgCT EXAMINAT[ON\STAROP~LOI

2 Q Did you ever evidence of that? 2 Q Is that who his car loan was with? 3 A Not with me. 3 A No. 4 Q What other businesses do you have that 4 Q What is that for?

5 have received money from Parkway South Inc.? 5 A It was a charge on his credit card that

6 A I don't remember. If you give me the 6 they paid him back?

7 names. 7 Q Do you have any evidence of that? 8 Q Did FMB get money? 8 A Evidence of the charge? 9 A Yes. 9 Q Yes.

10 Q How much did they get? 10 A I'm sure I can get it from my son.

11 A FMB was getting on going checks from my 11 Q Is this part of the loan as well?

12 son's compensation on the truck and then it would 12 A No. 13 vary. 13 Q Is this a separate loan? 14 Q So your son's compensation was for the 14 A Yes.

15 truck? 15 Q And who is the car loan with?

16 A Right. 16 A Which?

17 Q Let's refer to this check for Parkway 17 Q The one your son signed?

18 South Inc. Who was that check made out to? 18 A When you say with, like General Motors,

19 A Which check is it? 19 that type?

20 Q The highlighted one? 20 Q Who was it leased with? 21 A NBA American. 21 A It was a leased smart buy from General 22 Q Can you read who the for is for? 22 Motors to my son.

@ 23 A Four? 23 Q Whom is the loan with? - 24 Q Who the check was made out to? 24 A General Motors to my son.

25 A Michael Bauco. 25 Q So you are saying FMB which is your

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133

company; correct? A Right. Q Receives money as payment of the car

loan for your son? A No. I did not say that I said the car

loans were made directly but part of the agreement with the lease is that he would give my son X amount of dollars every week or every month as compensation for what he was doing.

Q Was Mrs. Burgess privy to this? A Not, by me. Q She is the owner of company; correct?

A Yes. Q Do you know how much FMB received? A Q

A Q

A month.

Q A Q A

No, I don't. How much was the car for? The lease? Yes. I think it was close to 580, $600 a

Do you know how long it was for? Maybe two years. I forget. When was this done; do you recall? No. I don't have a date on it.

135

BAUCO\D!RECT EXAM!NAT!OU\STAROPOLO!

were paid are not monies that were evidenced in the $75,000 loan. They were different business relationships with this entity.

Again, I don't know see the relevance when we are talking about the the $75, 000 promissory note, and Mrs. Burgess's pursuit of her claim for entitlement for attorney fees.

THE COURT: You are saying that they were separate and distinct?

MS. FORTE: Correct. MS. STAROPOLI: Your Honor, there is

no way of proving that. Just as there is no way of proving this loan. He produced one credit card statement. I am going toward credibility. This man had no

credibility. He has given on credit card that shows $27,000. He has a confession of judgment loans which is for loans as of April. Which he cannot prove except for $27, 000.

He went for the full amount against my client when he is not even owned that much,

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MS. FORTE: Your Honor, I ask for an offer of proof as to relevance.

MS. STAROPOLI: Your Honor, he is saying that these payments were made to FMB as partial payment to his son for doing this leasing obligation. This is more money going through his business which has nothing to do with this promissory not but he has no evidence to show any of this documentation. We have asked for this and other documents. He has given us one credit card statement evidencing the loan that he made totaling $27 ,000.

MS. FORTE: I respectfully disagree. Ms. Staropoli has never asked for back

up documentation regarding any of loans for FMB, 550 Associates, Michael Bauco.

The one thing she did request back up for was evidencing $75,000 promissory note which we provided in the sir reply which was the credit card statement, prior loan and the $35,000 for miscellaneous loans.

However, the witness is testifying that all of these extraneous monies that

BAUCO\DIRECT EXAM:f!ATION\STAROPO~U!

136

your Honor. This confession of judgment and the promissory note as of April of 2006, not for prior loans.

What he did with her husband prior to this, so be it. He should not have gone after my client when he can't produce documentation to show other than this $27,000. We are saying that these payments made through his other entities waspayment for that. That is our evidence.

He has gotten is $27,000 plus extras for that. His son gets money for just signing not guaranteeing a lease.

Your Honor, there is more than $50,000 being paid out to this gentlemen and his various entities, his family members.

You're saying you lent $27,000 but you are getting more than that which we don't know why, but you are constantly saying this.

I don't know what kind of deal they had together with her ex husband or his son.

There is a claim her for $75,000.

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There was not that money given after. There is no proof --

137

MS. FORTE: I respectfully disagree. In March 3, 2008 hearing before Judge

Liebowitz, Steven Sergio testified on the stand that he ran the business day to day with Richard Burgess, that Frank Bauco had a continuing history of loaning money to the company.

MS. STAROPOLI: Before. MS. FORTE: Before and after. I have

copies of transcript the which I will offer into evidence.

Steven Sergio, whose wife was 50 percent owner with Maura Burgess, testified that their on going relationship and the lending of money continued, before and after the execution of this promissory notice.

To ask my client hours of examination, which is fine, it is just irrelevant to the inquiry Richard Burgess is the one that would have first hand knowledge of his dealing. If anyone is going to impeach or

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support Mr. Bauco's testimony, it would be Richard Burgess or Steven Sergio.

Steven Sergio did testify under oath in March that they had an on going business relationship between Frank the Auto dealership and Richard Burgess.

MS. STAROPOLI: But, your Honor, it didn't involve my client.

MS. FORTE: Yes, it did. She is 50 percent owner of the business.

Ms. Staropoli is playing a shell game. half the morning she is saying my client is 50 percent owner; did you consult her. Now she is saying money going into S and S Collision had nothing do with her client. She you can't have both ways, Judge.

MS. STAROPOLI: Your Honor, I am not saying that. I am saying that this is a woman who they knew had nothing to do with this business made her sign a document. She has no records, no evidence there is no money. This company went under because they had no money.

If this man was constantly loaning

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BAUCO\DIRECT EXAMINATION\STAROPOLOI 1 BAUCO\DIRECT EXAMINATIOU\STAROPOLO:

they would have not been under. 2 Q A promissory note. There is insufficient funds checks 3 A Maybe a canceled check.

being bounced left and right. There was so much money going in more of the money was going to him and his family.

4 Q Have you provided that? 5 A No. I was not asked to. 6 Q So you are claiming you were not asked

There was a loan made on or about April. it was not on or about April of 2006. Mr. Sergio can say whatever he wants.

7 to provide a note or evidence of a loan but you 8 are asking that Mrs. Burgess be responsible for 9 it?

THE COURT: Let's move on. 10 11

Q Did any other company receive money from 12 Parkway South Inc.? 13

A Any other companies? 14 Q That you own? 15 A Not that I can remember. It possible. 16

I don't know. 17 Q What about 550 Reality? 18 A That is possible. 19 Q How much did they get? 20 A I don't recall. 21 Q Why would they be getting money? 22 A I probably lent them money. 23 Q Do you have any evidence of that? 24 A When you say evidence? 25

MS. FORTE: Objection, to the form of the question.

THE COURT: Sustained. Q You have not provided any evidence

beside the $27,000 of this loan but you want Mrs. Burgess to be responsible for the full 75?

MS. FORTE: Objection, as to the form of the question. My clients entering of the confession of judgment is based upon a promissory note that was signed by four individuals, and affidavits of confessions of judgment by four individuals. That is how we held Steven Sergio, Jannett Sergio, Maura burgess and Richard Burgess responsible.

We just did not go and attach her

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accounts. There were documents that were signed and notarized and returned to my client signed and notarized. That is his reliance. Not upon documentation of this loan or that repayment.

Those are the underlying documents which Frank Bauco and Andrew Gambardella are relying upon when they tried to seize the accounts of the four individuals who signed as personal guarantors.

So, the question as possed to my client is a mischaracterization of the facts.

MS. STAROPOLI: Your Honor, the issue here besides it being forged and fraudulently signed, is that this loan was never made with regard to Mr. Bauco.

He even says that the only reason why he did the promissory note was because his cousin was involved.

Mrs. Burgess will testify later to certain information that will back up what he is saying. There is no evidence of the loan. They haven't provided any evidence

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BACCO\DIRECT EXAMINATIOU\STAROPOLOI

note not with Mr Bauco's. We could not find the one for Mr. Bauco notary. He seems to have disappeared. He used to work near his building.

There are issues here that this should not have been pursued against Ms. Burgess because there was no loan actually made and any monies paid have been repaid.

THE COURT: Let's continue. Q Is there any evidence of documentation

of the loan made with 550?

A Other than possibly a canceled check. Q Did you provide that canceled check? A I don't know if one exists or what the

amount is if it does. Q From time of April 2006 to July of 2006;

do you recall how much money you received from Parkway South Inc.?

A Not off hand. Q We will go through the statements.

will start with this one. Can you refer to check number 1230.

A That Is Michael Bauco for $5,000. Q Michael Bauco is your son; correct?

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of Mr. Gambardella's loan. I'm sorry he got pulled into all of this but there is no evidence of any loan beside the $27,000 made on behalf, by, Mr. Bauco.

142

There is forged documents that anyone could have signed and he could have had his client prepare and given it to Mr. Burgess and Mr. Sergio and then given back.

There is testimony also in that trial that that Mr. Bauco went to the notary or that Mr. Bauco was there.

MS. FORTE: Absolutely not. The notary came under Judge Liebowitz's direction and said, and I have a copy for you, your Honor. It was not for Mr. Gambardella. The question was posed to the notary; do you recognize anyone in this courtroom? She said no.

Ms.Staropoli said that gentlemen, pointing to Frank Bauco, the notary said no.

MS. STAROPOLI: That had to do with that notary was solely involved with the signing of Mr. Gambardella's promissory

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BAUCO\DIRECT EXAMINATIOH\STAROPOLO:

A Yes. Q Check number 2032? A Alex Biagoni for $6,000. Q Check number 1303? On the next page. A I can't see the amount. $260 MBNA. Q On behalf of? A Michael Bauco. Q I will take that back and give you

another statement. Check number 1318 on that statement?

A 550 Realty for $14,284. MS. FORTE: Hold on one second please? MS. STAROPOLI: Sure. It is on the

May 31st statement. MS. FORTE: All right? THE COURT: Check 1319?

A FMB Industry, $400. Q And check number 1352?

MS. FORTE: What was the number on that once again?

MS. STAROPOLI: 1352 is the one we are looking for. A Michael Bauco. Q How much was that check for?

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A $215. 2 A No, why would he? Where does it say S MS. FORTE: What was the question that 3 and S on here?

the response was Michael Bauce? 4 Q The statement I'm looking at. MS. STAROPOLI: Who was the check made 5 A I'm looking at this check.

out to? 7 MS. FORTE: It is not written out to 8 Michael Bauce. 9 MS. STAROPOLI: Right. He said

10 Michael Bauce. I didn't say that. 11 A You said whose check? I said Michael 12 Bauce. 13 Q It is written from what account? 14 A Michael Bauce. 15 Q This was Parkway South Inc. account to 16 MBNA America. 17 A I don't know that. I would like to 18 look --19 Q Why would Michael Bauce statements be 20 on --21 A I don't know. I am answering your 22 questions. That is all I can do right now. On 23 the top of there is Michael Bauce. 24 Q Does Michael Bauce have a checking 25 account with S and S?

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1 BAUCO\D!RECT EXAMINATION\STAROPOLOI

2 Q This was a monthly thing? 3 A Yes. 4 Q June 30th statement, check number 1353? 5 MS. FORTE: Your Honor, I have to 6 object to this line of questioning. This 7 doesn't show repayment of money to Mr. 8 Bauce. It shows payment of money to 9 various other individuals. Some of the 10 business entities he explained, but the 11 majority of her questions, she is proving 12 that check were paid out of a business

13 account but not for the benefit of Frank 14 Bau co. 15 I assuming she is alleging that he 16 should be given a credit for these monies. 17 Why should any credit be given for 18 these monies? There were not paid on his 19 behalf. 20 MS. STAROPOLI: Most of these checks 21 beside the small $410 check, have been made 22 out to various companies of his. The big 23 $14,000 check was given to him. 24 A What $14,000? 25 Q 1318, we just said?

6 Q What kind of check is it? 7 A It says Michael Bauce on it. 8 Q Is this an electronic check? 9 A I don't know that. 10 Q Whoisitfor? 11 A MBNA. 12 Q If you look back at this credit card, 13 this check; who signed the check? 14 A It says signature for Michael Bauce but 15 nobody signed it. 16 Q Correct. These are electronic 17 withdrawals made to his credit card. That is what 18 you stated earlier; correct? 19 A It is says Michael Bauce, MBNA credit 20 card. 21 Q Is that the same check as that one? 22 A Different check numbers. 23 Q They are the same account number going 24 to the same payer? 25 A Yes.

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2 A I didn't say anything. 3 THE COURT: What are you saying as --4 MS. STAROPOLI: I am saying payment 5 were made. 6 THE COURT: Wait. 7 MS. STAROPOLI: Sorry, your Honor. 8 THE COURT: What are you urging? 9 Q I am saying that payments were made 10 through various companies of his. 11 If the $27 ,000 was repaid that was due 12 and owing him and he didn't make any of the loans. 13 So he should have never gone after Maura Burgess 14 because she doesn't owe anything. She owes 15 nothing to him, neither does the company. They 16 paid him back. And beside the fact they have no 17 evidence beside the $27,000? 18 THE COURT: You are urging he should 19 have never brought any action --20 MS. STAROPOLI: Correct. It was paid 21 already. It was loans made after the fact. 22 It is two-fold, your Honor. 23 First being that any money that he did 24 allegedly lend from that credit card 25 statement which we are not disputing the

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2 credit card statement and we never did, 2 check was for, check 1318, please tell the Court 3 have been paid back plus? 3 how much that check was for?

0 4 THE COURT: That this witness is owed 4 A $14, 284. .

. 5 no money? 5 Q That is to your company? 6 MS. STAROPOLI: Correct. 6 A It says my company. I never received 7 THE COURT: And the gentlemen that 7 it. 8 testified previously? 8 Q Is your account at the Bank of New York? 9 MS. STAROPOLI: I believe he is owed 9 A No.

10 money but not from my client? 10 Q How about Washington -- I can't read the 11 MS. FORTE: I'm sorry but -- 11 back of this check. Oh, you never received thus 12 THE COURT: You shouldn't, please. 12 check? 13 MS. FORTE: I'm sorry, your Honor. 13 A It bounced. Get your records straight. 14 THE COURT: He is owed money but not 14 MS. STAROPOLI: Your Honor, please 15 by your client? 15 advise the client not to do that. It 16 MS. STAROPOLI: At this point, no. 16 didn't come back as bounced. It cleared 17 Because at that point he had documentation 17 her and it doesn't say insufficient funds, 18 that possibly could have made him believe 18 your Honor. 19 that he was owed the money. 19 A It doesn't say that it has been cleared. 20 Again, I think after she testified 20 Q It has been endorsed and its been 21 that we can show that -- your Honor, I 21 cleared. If you are going to state something look 22 don't want to testify on behalf of my 22 at the check. 23 client? 23 THE COURT: Stop that and move on. 24 THE COURT: Let's move on. 24 Q Check number 1353? 25 Q Since you didn't say how much that 25 A Yes.

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1 BAUCO\DIRECT EXAMINATION\STAROPOLOI 1 BAUCO\DIRECT EXAMINAT!ON\STAPOPOLO:

2 Q Who is it to? 2 Q To whom? 3 A Michael Bauco. 3 A 550 Realty. 4 Q How much? 4 Q The last check, 1411? 5 A $410. 5 A 550, 4,000. 6 Q Check number 1363? 6 Q That was made out to 550 Realty? 7 A FMB Industries, $400. 7 A That is what it says. 8 Q Check number 1368? 8 MS. STAROPOLI: The total of those 9 A 550 Realty, $2,000. 9 checks if you added them up -- there is one

10 Q Can you read what is in the "for", 10 more check, your Honor, on July 31st I 11 please? 11 didn't get the statement for $400. The 12 A For? 12 total checks come out to be $58,969.20 with 13 Q Yes. 13 some issue with regard to Webuilt and Alex 14 A American Express. 14 Biagoni which would bring it down to like 15 Q American Express, what? 15 $30,000, your Honor? 16 A Payment. 16 MS. FORTE: What about giving a credit 17 Q Check number 1372? 17 for Michael Bauco, for the consulting fees 18 A 550 realty. 18 which it down to $25,000. 19 Q How much? 19 MS. STAROPOLI: It actually doesn't 20 A $2,000. 20 because $58, 969. There is a check for 21 Q What's if has for? 21 $5,000 to Mr. Bauco and $26, 000 to Webuilt 22 A AMEX payment. It is the same date as 22 and Alex Biagoni that brings it down to

@ 23 the other ones? 23 $27,969 almost the same amount as the - 24 Q No. Check number 1319? 24 credit cards, your Honor.

25 A $4,000. 25 I just have a couple more questions

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1 F\,'\:.:t:d,~':?~ ·7 !o''.\,\~~:?-:_.\::~~!l\~";:'f\p,•i· ':.,•: 1 2 then we are done. 2 3 Q Do you know what happened to Mr. Burgess 3 4 in regard to your fraud incident report? 4 5 A Do I know what happened to him? 5 6 Q Yes. 6 7 A No. 7 8 Q Did you testify at the trial? 8 9 A What trial? 9

10 Q Did you speak to the DA? 10 11 A Did I speak to the DA? 11 12 Q Yes. 12 13 A No. 13 14 Q The DA pursued this on their own? 14 15 A What is your question? 15 16 Q Against Mr. Burgess for your fraud? 16 17 A Are you asking me if I pressed charges? 17 18 Q Yes. 18 19 A No, I did not. 19 20 Q Did you receive payment back from Mr. 20 21 Burgess? 21 22 A No, I did not. 22 23 Q Are you aware that Mr. Burgess was 23 24 incarcerated? 24 25 A Several times. 25

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1 BAUCO\CROSS EXAMINATION\FORTE 1 2 prior; correct? 2 3 A Yes. 3 4 Q I am showing you a document that I would 4 5 like to have marked -- 5 6 MS. STAROPOLI: I object, your Honor. 6 7 I have never seen a copy of this. 7 8 MS. FORTE: May we go off the record 8 9 for a second? 9

10 THE COURT: Let's go off the record. 10 11 (Whereupon, a discussion was held 11 12 off the record.) 12

13 MS. FORTE: This is a prior loan that 13 14 was made in 1997. 14 15 16 17 18 19 20 21 22 23 24 25

MS. STAROPOLI: It is not a promissory note. It is a letter. Your Honor, I object. My client has not had time to review this. It is not her signature. Another issue with her signature.

MS. FORTE: Your Honor, for an offer of proof, this document is being offered two-fold as a purpose.

One to show that at the inception of Mr. Bauco's relationship with Mr. Burgess, lending money, that we did ask him to sign

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Q Were you aware that Mr. Burgess was convicted and in prison doing some time recently?

A I heard he was in prison for this. What I know is hearsay.

Q You were never contacted by the DA's office?

A No. MS. STAROPOLI: I have no other

questions,yourHono~

THE COURT: You may inquire. MS. FORTE: Thankyou,yourHono~

CROSS EXAMINATION BY DENISE A. FORTE, ESQ.:

Q How many times have you lent money to Mr. Burgess?

MS. STAROPOLI: Objection. It was asked and answered, and he said he didn't know for sure. Several times.

THE COURT: I will allow it. A 10 to 12 years. Q You testified on direct examination that

you asked Mr. Burgess to sign a document once

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BAUCO\~ROSS EXAMINAT:DN\FORTE

something guaranteeing repayment of it. Also on the bottom of the letter you

will see that there is a guarantee that we asked Maura Burgess to sign it. There is a signature on here that says Maura Burgess.

It is not offered for the authenticity of the signature. It is simply offered as credibility that Mr. Bauco and Mr. Burgess had a relationship where they loaned money, and Mr. Bauce had asked on prior dealings for Mrs. Burgess be a guarantor of the money owed.

MS. STAROPOLI: Your Honor, this document could have been prepared yesterday. There is nothing to prove -­again, there is no evidence of a loan with this document. It is just a plain piece of paper that anyone could have prepared.

THE COURT: In light of all the testimony that was elicited, I will take it.

This will be marked as plaintitrs 1 in evidence.

(Whereupon, Plaintitrs Exhibit No. 1 is

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2 . marked in Evidence.) 2 · A·· Yes.

3 .o ... 4 ..... , . ..,,, ·: ... 5 • ·I. • • ......

6 ... ..: 7

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e 22 - 23

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THE COURT: Proceed. 3 Q Did you ask that Richard Burgess also Q Mr. Bauco who signed this letter on ' 4 sign individually as a guarantee? . · . · .... ,. '

behalfofBurg·ess Associates'lnc.? :: · ,.,~:·: "5 .: :',~·A··'· Yes.··". · .,,_ '<'·' · .. J:.,,·~.·~.~ .. :...:•:·-';:t.;: ·~-"; -~··;~.,--,~. :· : .A Richard Burgess and Maura Burgess~· 6 . Q Why? ,.;.;, .. ·· ·

MS. STAROPOLI: · Your Honor, I object Again, we are not going to authenticity.

7 A This was really the first time rwas · ·. 8 doing any business with him.

My client has never seen this document before and she is just saying that this is

9 Q Why did you ask for a spouse to sign it?·. 10 A Because unless I know them and in case I

not even her signature. He can't, the witness, say that Maura Burgess signed this because he doesn't know emphatically and. the fact that she said who signed as Burgess Associates. She did not say who signed it as guarantee.

MS. FORTE: That is correct. Q My question was who signed on behalf of

Burgess Associates? A Richard Burgess. Q Upon receipt of this you loaned money to

Burgess Associates, Inc.? A Yes. Q Did you ask for Maura Burgess to sign as

a guarantee?

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11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

promissory note were executed; who drafted those 2 promissory notes? 3

A You did, Ms. Forte. 4 Q After I drafted them; what did I do with 5

fuem? 6 A You gave them to me. 7 Q Upon your receipt of them what did you 8

do with these documents? 9 A I hand delivered copies to Andrew for 10

his review. I hand delivered them to Richard 11 Burgess and Steve. 12

Q Were you there when these documents were 13 allegedlly signed and notarized? 14

A No. 15 Q When, if at all, did you receive the 16

documents back? 17 A Sometime afterwards. I don't know that 18 ·

period. I don't recall. 19 Q When you received them back were they 20

signed and notarized? 21 A Yes. 22 Q Pursuant to the terms of the note you 23

were supposed to get interest only payments for 24 one year; correct? 25

have a problem of one moving money from one account to another account sort of hiding funds.

MS. STAROPOLI: Your Honor, I object. This can't even be used as a promissory note. It has not even been notarized. He is saying he does this when it is a business loan. This is a professional. He would not just sign -- this is nothing that can be used in Court.

THE COURT: There is testimony from the witness. I will allow it.

MS. FORTE: I would like to have that marked into evidence.

THE COURT: It is. Q Mr. Bauco, in April of 2006 when the

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BAUCO\CROSS EXAMINATION\FORTE

A Correct. Q How many interest only payments did you

receive? A I don't recall exactly. I know it

wasn't 12. I am guessing it was probably 8 or 9 give or take.

Q The interest only payments; were some of them made by check or some by cash?

MS. STAROPOLI: Your Honor, she is leading. I never asked about interest payment to him.

MS. FORTE: Yes, you did. MS. STAROPOLI: No, I didn't. I asked

about payments not about interest. THE COURT: I will take it. MS. FORTE: How were the repayments

made, the interest only payments? A Initially by checks and the remainder in

cash. Q Did you contact my office after the

interest only payment ceased coming? A Yes. Q What did you direct me to do, if

anything?

. '·'

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2 A To notify them. Send them a default

3 letter . 4 Q When was the letter sent, to the best of 5< yo.llr knowledge.? ·· , · ·of;.,

6 : . A A month after. I don't know- exactly. 7 When I stopped getting payment . .When I stopped 8 getting paid is all I know. 9 Q Were you present at the hearing on 10 March 3, 2006 before Judge Liebowitz? 11 A Yes. 12 Q Did you have an opportunity to hear 13 Maura Burgess testify at that proceeding? 14 A Yes. 15 Q Did she testify about any knowledge of 16 the loan prior to her accounts being frozen? 17 MS. STAROPOLI: Your Honor, I object. 18 She can ask my client herself. She is 19 right here. 20 MS. FORTE: Do you want to save it for 21 the examination of Mrs. Burgess? 22 Mr. Bauco was there and I have a transcript

23 of her --24 THE COURT: I will allow it. 25 A Please repeat that?

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1 BAUCO\CROSS EXAMINATION\FORTE

2 A No. 3 Q Did you prepare that document? 4 A No. 5 Q Did you sign that document? 6 A No. 7 Q This documentation relates to an alleged 8 unauthorized charge on your credit card; correct? 9 A Yes.

10 Q According to the document; when was the 11 incident reported to the police? 12 A Date in the report says 30th of May, 13 2007. 14 Q And the next tab over it says date and 15 type of occurrence; what is the time and date 16 filled out on this report? 17 A March 16 of '06. 18 Q Do you know which transaction they are 19 referring to in this document? 20 A Not according to this date but I believe

21 so. 22 Q Do you know the charge they are talking 23 about with respect to Avalon? 24 A Yes. 25 Q Based upon your familiarity with that

162

1

2 Q Were you present when Mrs·; Burgess 3 testified the March 3, 2008 hearing before Judge 4 Liebowitz? . . ..

,. 5 .; '·~·-·.·A Yes. ''· · ·::_ .. ,: .. ;.>:·'~;,;;~:•:) .....

6 Q Did she testify that she had known of · 7 the loan prior to her accounts· being restrai_ned? 8 A Prior to her accounts being restrained? 9 Q Correct. 10 A No, she didn't. 11 Q What did she say that she did when she 12 found out that there were loans made to the 13 company? 14 A She went to her husband. 15 Q What did her husband say to her? 16 A Don't worry about it. I will take care 17 of it. 18 MS. STAROPOLI: Your Honor, she is 19 asking questions about her. My client is 20 here. 21 MS. FORTE: I will withdraw and move 22 on. 23 Q Mr. Bauco, I am showing you a document 24 that you testified to earlier. Have you ever seen 25 that document before this morning?

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2 charge; when did the occurrence happen? 3 MS. STAROPOLI: I object to the 4 question. There is a document there that 5 he is referring to from the police report. 6 I didn't prepare it either. 7 THE COURT: Overruled. You may ask 8 the question. 9 Q Based upon our recollection of the 10 Avalon dispute and this incident; when did the 11 time and date of the occurrence happen? 12 A Around March of '07 not of '06. 13 Q Why do say March of '07 and not of '06? 14 A That what my recollection. It was 15 definitely '07 not '06. I can go back to my 16 records and find out when I made the complaint 17 against Chase, when I called up -- actually when I 18 went to make a charge it was denied. I have 19 records to show that. 20 Q You went to make a charge on your credit 21 card? 22 A Yes. On my Chase credit card I was 23 denied because it was over limit. 24 Q After you were told that you were over 25 the limit what steps do you take to fin out why it

' ~ .

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1 BAUCO\CROSS EXAMINAT!ON\FORTE

2 was over-the limit? 3 A I called them up and asked them what the 4 charges were and told then that they were not my

.. : .5· :: :, charges:· He· said no problem. I will remove them, . 6 .. Q .. ;· Based upon this document, which you did . 7 not. prepare, and was allegedly prepared by the .

8 City of New. Ro.chelle Police Department, the report 9 and the incident occurred approximately 14 months 10 in between; correct? From March of '06 to May of

11 '07? 12 A Maybe this is a little bit easier. 13 There are dates next to it. Those dates are '07. 14 Q Those are the dates the of the police

15 officer's investigation. That is what he did, I 16 believe. So when you see May 29 '07; what are you

17 referring to Mr. Bauce? 18 A No. You're right. It is confusing. 19 Q When did the alleged unauthorized charge 20 occur on your credit card; in '06 or '07?

21 A '07. 22 MS. STAROPOLI: I object. He 23 previously stated that he could not recall. 24 He said that he had to look at his records. 25 It was asked and answered already.

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2 3 4 5 6 7 8 9 10 11 12

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BAUCO\CROSS EXAMINATION\FORTE

A Months and months and months later. Q On direct examination Ms. Staropoli

asked you if you spoke to your attorney about settlement discussions; correct?

A Right. Q I don't recall your answer. I am going

to ask you again. Do you recall speaking to me

about settlement discussions? A Yes. Q For the Court what was the sum and

substance of these discussions? 13 A lfwe didn't pursue and would remove the

14 judgment, remove the frozen assets, they would drop everything and not pursue any legal fees. 15

16 Q So basically as it was explained to you

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1 SAUCO\CROSS EXAM!~AT:ON\F~R7E

2 A I said '07. I don't know the exact 3 date. 4 MS. STAROPOLI: Now he.remembers it

.. .-.5.\ . was '07. · . ·.• . :!c;'".:;t,;": .. -:r: ·;:.:,-·' ... : :.· '.'.::~.::~. : · .. -::~~ · 6 MS. FORTE: Credibility .issue wo.uld be. ~

7 for the Judge to decide. The record is · .. 8 what the record is. 9 MS. STAROPOLI: ·Your Honor, then he is 10 making testimony. He is stating 11 something -- there is a document there that 12 says one thing and he is saying something · 13 else. He doesn't remember what he said. 14 THE COURT: I will make a 15 determination ultimately. We will move on. 16 Q Mr. Bauce, when the promissory notes 17 were executed in April of '06. Did you know about 18 theses unauthorized charges? 19 A No. 20 Q Were you 100 percent certain of that? 21 A 90 percent. 22 Q Again, using the April '06 date as a 23 control date; when did you find out about this 24 unauthorized charge In relationship to the 25 execution of the promissory notes?

1 2 3 4 5 6

7 8 9 10 11 12 13

BAUCO\CROSS EXAMINATION\FORTE

remove the underlying judgment on the corporation, how could I go against the other three individuals?

168

MS. STAROPOLI: It was towards my client as an owner of the corporation. Not asking that and that was not what was said that Jannett -- I never or did represent Jannett Sergio. It was solely with respect to my client. Q With respect to these settlement

discussions did Maura Burgess offer to pay a dollar figure towards Andrew Gambardella's $75,000

14 wire? 15 16

A No. Q Was there an offer to pay any money

17 18 19 20 21 22 23 24 25

through if we released her accounts, and what did 17 towards you to pay your $75,000 loan?

they want with the underlying judgments; if you 18

recall? 19 A They wanted to remove them. They wanted 20

to remove everything. 21 MS. STAROPOLI: Your Honor, some 22

clarity there. This is only dealing with 23 my client not remove them totally. 24

MS. FORTE: With all due respect if we 25

A No. Q So the settlement offer was, dismiss

everything against her, release the account, and she would not come after us for attorney fees?

A That's correct. Q As a practical matter as far your

investment; where would that leave you? A Out $75, 000 for myself and my cousin.

Page 102: Burgess 143 Pages

1 .. 2.

169

SAUCO\CROSS EXAH!NATION\FORTE

MS. STAROPOLI: Objection, your Honor. _ 3 That is not true. There are three other

1

2 3 4 0 :, . · 4 ·., ·. · ·parties involved here.

;-,~.:-~"s·;;. ":, .. ~--.~~,., ~·,THE·CO.U_RT: Thatis.hiS·.vieW; ·5·· . 6

0

. 6. : ·~ ... ~: :, :. MS. STAROPOLI: I just want to make .7.. sure that the case is qlear that there are 8 four defendants not just one. 9 · · THE COURT: I understand.

10 Q On direct examination, you were asked 11 what steps, if any, you took to attach the 12 residence of Steven Sergio; correct? 13 A · Correct. . 14 Q What steps did you take to see ifthere 15 was any equity in the house of Steven or Janet 16 Sergio? 17 A The title. The title search. 18 Q Without holding to the exact number what 19 did that title search reveal? 20 A That he had a first and second mortgage. 21 Basically the house wasn't worth it and it did not 22 pay to go after it. 23 Q Did you file a lien against Maura 24 Beugess's residence? 25 A No, I didn't.

171

7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 BAUCO\CROSS EXAMINATION\FORTE 1 2 Q When you say their accounts; whose 2 3 accounts? 3 4 A We went after all four. 4 5 Q When the promissory note was executed in 5 6 April of 2006; how much money were you owned by S 6 7 and S Collision? 7 8 A When it was signed? 8 9 Q When it was signed in April of 2006? 9

10 A When it was signed it was something less 10 11 than $75, 000. The exact amount, I don't know, 11 12 but was something less than $75,000. 12 13 Q When did you loan the balance of it to 13

14 get it up to $75 000? 14 15 A Actually it started right away. Days 15 16 after. 16 17 Q What was that loan made to do? 17 18 A To buy parts for the company. 18 19 Q Once that initial capital was put in 19 20 after the document were signed, what was the total 20 21 amount due owing to Frank Bauco, individually? 21 22 A After that date? 22 23 Q Yes. 23 24 MS. STAROPOLI: Your Honor, I object 24 25 There is no evidence, again? 25

170

BAUCO\CROSS EXAM:t:A7!0?J\FOR7~

Q Why didn't we file a lien a-gainst Maura Burgess's residence?

A . Why? ."lt • • •• ~.

" ·a : : Yes ... ;,., · -;. .. ;·;-:·..:: i.::·Y:;.-:~-::; A · . The same thiog~ the:market is· like

throwing good money after.bad. ·. :'.•· THE COURT: You did not file any liens

against Maura Burgess? THE WITNESS: No. THE COURT: Wh!'lt action did you take? THE WITNESS: No action. As far as

taking a tax lien we checked to see as far as loan on it, and it didn't pay because again, based on the market it was throwing good money after bad?

THE COURT: You took no action? THE WITNESS: Other than checking the

value. So basically, no. Q Once my office obtained the signed

judgments against the four individuals and the corporation; what steps did we take to collect enforcement actins on the judgment?

A We froze their accounts and their assets.

BAUCO\CROSS EXAMINAT!ON\FORTE

MS. FORTE: It is my client's testimony.

172

MS. STAROPOLI: He stated earlier I asked him these questions earlier.

THE COURT: Are you saying that he can't testify without written documentation?

MS. STAROPOLI: No, your Honor. They have already been asked and answered. I asked them all. He could not recall. Now this is a different story?

MS. FORTE: Absolutely not true. I have the right to cross-examination.

MS. STAROPOLI: Not if they already been asked and answered, your Honor. I asked him specifically; do you know how much you lent before? I don't recall. I don't have my records.

Do you recall how much you lent after? I don't recall. I don't have my records.

THE COURT: That is something to take into consideration but he can certainly testify.

Page 103: Burgess 143 Pages

173

1 BAUCO\CROSS EXA¥.!NATION\f0RTE

'• 2 .,, , ,, ·'· · .; .• : M.S. STAROPOLI: He has already 3 testified. She is just asking the same ., o· 4 ... . question again?

~.·:.·· .. 5 >~C'.i'~THECOURT: Overruled. Proceed.··

.• . ... ... · 9. ~ , : ... Q:'.·. ·~Mr. Bauco, after this initial capital

. ~.... ~ -.. . ... '

7.: ,-.; • w~s ordered for the company, the parts, after 8 April of 2006 how much in total were you owed by 9. the company, Parkway South Collision Inc.?

10 A The exact number I don't know. It was 11-.-,~in excess of $80, 000. 12 · Q · On direct Ms. Staropoli when through a 13. number pf <;hecks with you; correct? 14 A Yes. 15 Q Working off that $80,000 figure that you 16 just testified to; would that $80,000 figure be 17 reduced by that $5,000 check that was paid to

18 Michael Bauco? 19 A No. 20 Q Why? 21 A It had nothing to do with that loan. 22 Q For clarification, that was a finder's 23 fee for Michael Bauco for trying to put together 24 that loan? 25 A It was a finder's fee and there was

175

BAUCO\CROSS EXAMINATION\FORTE

that Ms. Staropoli said. We are talking

1 2 3 4 5 6 7 8

about commissions that were due and owing to Michael Bauco.

MS. STAROPOLI: But the loan is not complete until the obligation has been set. If the obligation is not set until --

THE COURT: I understand. 9 Q In relationship to the $100, 000 on this 10 line of credit, and the April 2006 loan which the 11 promissory notes evidence; how close in proximity 12 was the mortgage commitment issued for the line of 13 credit and then the April 2006 loan? 14 A I am guessing it could be 4 to 6 weeks,

15 more or less. 16 THE COURT: Close to? 17 THE COURT: Within a month I am 18 thinking. I don't remember exactly. 19 Q The commissions were not paid to Michael 20 Bauco until the loans were received by 21 Mr. Gambardella and yourself; correct? 22 A That is correct. 23 Q The money that was paid to Alex Biagoni

24 from the corporation, individually, should that 25 money be offset from the $80,000 that was loaned

174

1 BAUCO\CROSS EXAMiNAT:ON\FORiE

2 money in there for the truck. · ,;~-.>

3 Q The loan that Michael Bauco was trying 4 too procure through the line of credit? 5-· , '· .. A:.:·'· Yes. , " · ;·:~... :,~ .... ' .. ;'.--,1:.; .: ";

6. Q. Was he actually:able to set up a loan .. 7 . . for them to avail themselves of?'. · ... , 8 A They did get a commitment for $100,000 9 but they didn't accept it because they had to put

10 up security which they couldn't do at that time. 11 Q Basically Michael Bauco rendered his 12 service in bringing a loan to them and obtaining a 13 mortgage commitment for them? 14 MS. STAROPOLI: I object, your Honor. 15 There is no documentation or proof. Just 16 because you have a commitment it does not 17 mean that you have a mortgage until you 18 fulfill all the obligation.

19 I do real estate law, your Honor. If 20 there is a term that needs to be done with 21 regard to commitment doesn't mean you have 22 procured the loan. There is an additional 23 items they need to get the mortgage 24 fulfilled. 25 MS. FORTE: I agree with everything

by you? A Q

176

BAUCO\CROSS EXAHINATION\FORTE

No. Why not?

1 2 3 4 5 6 7 8

A It was basically a bridge loan. It had nothing to do with my loan.

Q So Mr. Biagoni, had individually given the corporation money until Mr. Gambardella's wire

9 came in? 10 A That's correct. 11 Q Did you make any profit off of this 12 bridge loan? 13 A No. 14 THE COURT: We will take a short 15 recess at this time. You may step down. 16 (Whereupon, recess was taken.) 17 MS. FORTE: Judge, I have a couple 18 more questions. 19 THE COURT: Proceed. 20 Q Frank, before we took a break I was 21 asking you about the checks that you are asked 22 about on direct examination that were made to 23 Webuilt; should those check amounts be given a 24 credit to $80,000 loan? 25 A No.

Page 104: Burgess 143 Pages

177 178

1 9AUCO\CROSS EXAMI~AT!ON\FORTE 1 3AUCO\CROSS EXAXlNA7!~N\FnR75

. · . " 2 ·':' >Q· · And why not? .. '2 ·asking you about that? ·

3 A Because they had nothing to do with the 4. ··loan. It was bridge loan. 5 · .· .;·:.-Q Again, that money was loan directly by~

. . .. . _ .. : · :·: .. 6 · :. Mr: Biagoni and his .company?

.. :,.. -7 · .. ·• ·' A Correct. 8 Q Ms.Staropoli showed you some checks that 9 • were made out to FMB Industry. You are an owner 10 of FMB Industry; correct? 11 A Yes, I am. 12 Q The dollar amount varied and at most

13 $400. Should that $400 be used to reduce the

14 15 16 17 18 19 20

$80,000 loan amount? A No. Q Why not? A It had nothing to do with this. Q What was the payment for $400 to FMB? A That was for my son. Q That was with respect to the leased

21 vehicle? 22 A Right. 23 Q There was specifically a check number 24 1318 to 550 Realty Corp. in the amount of 25 $14,284. 10; do you know recall Ms. Staropoli

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22

23 24 25

179

BAUCO\CROSS EXAMINATION\FORTE

MS. STAROPOLI: It would not be deducted from a statement for payouts. This clearly says -- there are check here and I will provide when there have been insufficient funds they wait until statement. It is not presented and cleared. The check is stamped before it is decusted. I have several checks from this account -- here we go -- not sufficient funds. There, there is a difference. This was cleared out of the account. It has

been paid A I can produce that one, 100 percent.

MS. STAROPOLI: I have the evidence here, your Honor.

THE COURT: Proceed. Q Mr. Bauco, to the best of your knowledge

was any money paid back to Mr. Gambardella on his $75,000 loan?

A No. Q How was Mr. Gambardella's money loaned

to the company? MS. STAROPOLI: Your Honor, I object.

First of all Mr. Gambardella was here. She

3 4

.;. 5.•

6

A Yes. . Q ·, And you are·an owner of 550 Realty

Co·rp:? ;· ~ ,·: ... _. · ·:-, .. ;._,._.. ,. · · .: , :;::··.

A .: Yes... ........ .. · ·

Q · Should the $14,284. 10 be deducted from the $80, 000 that were owned pursuant to the

9 ·promissory notice? ... ·· 10 11 .

12 13 14 15 16 17 18 19 20 21 22

23 24 25

A That check got returned. It was a bounced check.

Q How can you be certain that that check bounced?

A That stands out like a sore thumb. believe I have a copy of that. I should have brought it.

MS. STAROPOLI: Your Honor, I object to the answer. If I could submit that. I have it right here. The check was cleared.

MS. FORTE: The documentation that Ms. Staropoli has is that it was endorsed and sent but there are times when checks have been sent back. It happened to my business when it gets to the payor bank it says insufficient funs and comes back.

180

1 BAUCO\CROSS EXAMINATION\FORTE

2 could have asked him that directly. 3 THE COURT: I will allow it. 4 A It was wired through one of his 5 brokerage accounts. 6 MS. FORTE: I have no further 7 questions of Mr. Bauco. 8 THE COURT: Any redirect? 9 MS. STAROPOLI: Just a couple, your 10 Honor. 11 REDIRECT EXAMINATION 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BY CATHRINE M. STAROPOLI, ESQ.:

Q You stated on cross-examination that you were paid back certain money from Parkway South Inc., correct, as interest payments?

A Yes. Q And you said some of those were by

check? A Q

A

Q

Yes. Have you reviewed these checks? No. In reviewing the checks that we went

over are any of those for interest payments? A I don't believe so.

.. : ...

Page 105: Burgess 143 Pages

181 182

1 BAUCO\?E~!RECT EXAH!NAT:ON\STAROPO~l 1

: ... ·"~"'' .. 2 3

. 4

Q This is the account that these payments 2 . Q In 'addition you say said thatthere was

···0--· ' .

were made from; correct? 3 A I don't remember. ·4

''< : Q ; . Do you know approximately the amountoL .. ~,.5 6 . supposedly these checks were made for payment? 6

.·: 7

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A . They were around $800 and change,·· 7 something like that. 8

· MS. STAROPOLI: Your Honor, I liked to 9 have these marked in evidence. If you 10 review the checks you will see that there 1.1 are no checks made to him or $800. 12

I am giving you April 30th bank 13 statement. May 31st, June 30th, and July 14 31st. These are complete statements that 15 were produce by Ms. Forte in the subpoena 16 that she issued. 17

The Court can review them themselves 18 and see that there are no checks paid to 19 Mr. Bauce for interest. 20

THE COURT: Mark this a defendant's A 21 in evidence. 22 (Whereupon, Defendant's Exhibit No. A is 23

marked in Evidence.) 24 THE COURT: Proceed. 25

183

cash payment? A .. As part of the loan? Q Yes. ·· .·. ::· '· ";<:· .. : ~: . . ~ .,;,.·: .. ·.· '···: ·· ;;·.-~

A Yes. . Q. Who did you receive the. cash from? ·

A From? Q You said you got cash? A You are talking about cash? I thought

you were talking about me giving him money? Q No. A From Rick Burgess. Q Did you ever give him a receipt? A No. Q You also said that you had title

searches done with regard Mr. Sergio's home? A Yes. Q Which title company did you use; if you

recall? A No, I don't. I don't know the name. Q Was there a fee associated with that? A I am sure there was. You know what, no.

It was friend. He did a favor for me. Q You said that you did a title search on

184

1 BAUCO\REDIRECT EY.AMINATION\STAROPOLI 1 BAUCO\REDIRECT EXAMINATION\STAROPOLI

2 Mr. and Mrs. Burgess home? 2 the AMEX payments. 3 A Yes. I don't know exactly how -- 3 A No. Those were for other bills. 4 Q Excuse me. 4 Q You also said that there was a mortgage 5 A We did a search. 6 Q And you said there was no equity in the

5 commitment obtained for the company; do you know 6 who that mortgage commitment was through?

7 home. Do you recall the mortgage that was 7 A I don't know.

8 outstanding? 8 MS. STAROPOLI: I have no other 9 A No, I don't. 9 further questions, your Honor. 10 Q You also said that you attempted to 10 THE COURT: Anything further? 11 freeze their assets. What assets were you 11 MS. FORTE: No, nothing further. 12 referring to? 12 THE COURT: You any may step down.

13 A The bank accounts. The normal. I told 13 MS. STAROPOLI: I have one more

14 my attorney to do what you do. Whatever we have 14 15 to do to freeze based on our paper work. 15 16 Q You also said, the day after this 16 17 document was signed you lent the company money to 17 18 buy parts; correct? 18 19 A Correct. 19 20 Q How was that loan made? 20 21 A Credit card. 21 22 Q That is the credit card statement of 22 23 $27, 000 that you are referring? 23 24 A Correct. 24 25 Q Which you received payment based upon -- 25

witness. Ms. Burgess. THE COURT: You may take the stand. Please raise your right hand. Do you swear the testimony that you

are about to give will be the truth, the whole truth, and nothing but the truth?

THE WITNESS: Yes. THE COURT: Please be seated. Give

your full. name to the Court Reporter. THE WITNESS: Maura, M-A-U-R-A,

Mc Cosker, M-C-C-0-S-K-E-R. 40 Wickford Road, New Rochelle, New York, 10801.

Page 106: Burgess 143 Pages

.";•.

. ~' ' ...........

.-;:.

0

185

1 2 THE COURT: Proceed. 3 DIRECT EXAMINATION 4 BY CATHRINE M. STAROPOLI, ESQ.: 5 ... " ... Q · · .. Ms. Mc Cosker, please·speak,loudly;·, ·.;· , 6 A . Yes. .. T Q .. can you please tell the Court how you 8 found out about the confessions of judgment and 9 the promissory notice? 10 A As part of my daily routine I go on line 11 to check my bank accounts. Four accounts were 12 frozen. Two of mine and two of my father's that I 13 was a signer on. I had my Social Security number 14 on them so they got those as well. 15 Q What did you do? 16 A I spoke to the levee department at the 17 bank. I didn't know what it was for. They 18 explained to me, and told me that I needed to go 19 to the police and go to Court and file an order to 20 show cause. 21 So I went to the police and came up here 22 and did the the order to show cause all in the 23 same day. 24 Q That same day that you filed the order 25 to show cause; did anything else happen?

187

1 MC COSKER\DIRECT EXAMINATION\STAROPOLI

2 Q Why did Mr. Sergio say that you were not 3 a party involved with this? 4 A He knows that I never had anything do 5 with this. I never went down to the business. I 6 never spoke to anyone about a loan. I had nothing 7 to do with any part of the business other than the 8 fact that the two wives put their names on it so 9 the husbands could get licensing from the

10 Department of Motor Vehicle or for whatever 11 reason. 12 Q Did Mr. Sergio speak to with regard to 13 the loan itself? 14 A Yes. 15 Q What did he tell you? 16 A He told me that it was a flim flam scam. 17 MS. FORTE: Objection. Hearsay. 18 MS. STAROPOLI: It is not hearsay she

19 20 21 22 23 24 25

was party to the conversation. . MS. FORTE: It is an out of Court

statement offered in Court for the truth of the content, by definition, hearsay.

MS. STAROPOLI: Not when she is a party to the action. I also have it on tape recording if the Court would like to

1

2· 3

186

~c :osKER\~lREC7 ~KAHiNATitN'S7ARG~JLi

·A Steven Sergio kept trying to contact me. · Q Please explain who Steve Sergio is

· 4 .. again? 5 ''; · : ·:A He is one ofthe four-defendants:· His ~.:.~:.::~.: "'·' ··~.·

; ,, 6 · wifer Jannett, on paper was the co owner of the 7 business at time. And I had gotten numerous phone 8 calls from co workers at my job that he was 9 looking for me. Looking to talk to me. So I 10 contacted him from the Courthouse from a pay

:-· 11 phone. I called him back. My attorney who was 12 not my attorney for this at the time happened to 13 be up at the Courthouse and came over so that she 14 could listen to the conversation before I 15 contacted him. 16 I called him and he went on and on about 17 how he knows that I have nothing to do with this. 18 I am not involved. It is not my fault. He was 19 willing to pay half of my legal fees up to 20 $10, 000, and that he would basically do whatever 21 he could so that I was not left responsible. 22 At that point in time I was going 23 through a divorce. I had two little kids at home. 24 My whole live was in an upheave and this thrown on 25 me and I had no way to pay bills.

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

188

MC COSKER\DIRECT EXAMINATION\STAROPOLI

hear Mr. Sergio speaking to my client. MS. FORTE: Mr. Sergio's

characterization of the loan is superfluous to this issue.

The issue is that monies were given by Mr. Gambardella in the form of one singular wire transfer and the monies were loaned by Mr. Bauco through a series of transactions and repayments and transactions.

This is not an inquest to find out how much money Mr. Bauco should get.

This is an application by Maura Burgess for attorney fees because she thinks that Mr. Gambardella and Mr. Bauco were frivolous in bringing this action against her.

With all due respect to this Court even from opposing counsel's own argument, it not a frivolous action.

Mr. Gambardella should walk away from $75, 000.

THE COURT: I will hear your arguments later on in the case itself. As it is I will take the testimony. Let's move on.

Page 107: Burgess 143 Pages

189

1 M~ COSKER\D!RECT EXAMINATION\STARO?OLI

2 · · · . Q Continue on. • 3 A What Mr. Sergio said to me in our

C""'.\ 4 conversation was that the only way that Mr. Bauco -,\,,;,,;l, · ~.:· \:5_; /:could·.get his· cousin to-.lend the money was to ha:ve

.

0

() .

. 6 documents.drawn up for himself and that those 7 co.uld be shown to Mr. Gambardella so that 8 Mr. Gambardella would lend the money. In fact 9 that Mr. Bauco was not lending the $75, 000 that 10 the papers stated. 11 MS. FORTE: For the record I state 12 that that whole testimony be stricken as

13 hearsay. 14 THE COURT: I will allow it. Proceed. 15 Q After you found out about -- did you 16 ever receive anything in the mail prior to those 17 documents? 18 A I did. I don't remember exactly when. 19 I am trying -- this happened, date wise, when I 20 got separated from my husband who was living a 21 double life. 22 I did but whatever it was I gave to my 23 now ex husband, and he told me don't worry about 24 it. Forget about it. It is nothing. 25 Q Did he speak to you about the loan?

191

1 MC COSKER\DIRECT EXAMINATION\STAROPOLI

2 The gentlemen was not paying him and he was going 3 to kick him out and maybe sell the house. So I 4 looked at the home and that was the extent of my 5 conversations. 6 Q Were you provided any evidence after

7 your accounts were frozen with regard to the loan 8 made by Mr. Gambardella? 9 A Yes.

10 Q What was it?

11 A The wire transfer into the bank account

12 that I guess Ms. Forte's firm got and gave to us. 13 Q When did you receive that? 14 A I don't remember exactly.

15 Q Was it before you submitted your order 16 to show cause? 17 A No. Definitely afterwards.

18 Q Were you given any evidence of any

19 monies provided by Mr. Bauco? 20 A No. 21 Q Was anything provided with regard to his 22 affidavits?

23 A The only thing he provided was those

24 credit card charges totaling $27,000.

25 Q To make it clear; did you sign any of

1

2' 3 4,.

5.•'i :.6

" 7 . 8 9· 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

190

A Yes, he did.· Q What did he tell you? A Separate from Mr. Sergio he told me that

exact same story; That .those two·apparently have 1. ,,, . ~;J~0:: :_,,

parted on very bad terms. MS. FORTE: Who are those two?· THE WITNESS: Steven Sergio and

Richard Burgess . Q What did Mr. Burgess tell, you? A He told me it was a flim flam scam and

that Mr. Bauco did not lend the $25, 000, and the only way that he could get his cousin to lend the money was to have these papers prepared and signed. The same story Mr. Sergio told me.

Q Have you spoken to Mr. Gambardella? A No. Q Have you spoken with Mr. Bauco? A Yes. Q What about? A In reference to real estate. I am a

real estate agent and he owned, I don't know if he still owns the property at 90 Sunnyside in New Rochelle. He was wanted to know what the market value was. Someone else was living in the home.

192

MC COSKER\DIRECT EXAMINATION\STAROPOLI

those documents, the promissory note or the confessions of judgment?

A No. Q Could you tell the Court why this action

is frivolous by the party? A For several reasons.

First of all I was going through a lot at the time. For me to have to spend money that I don't have, obviously, you know, I would think they would understand that I would have something say about this.

I went to the police. They did their investigation in October. Detective Benge from the the New Rochelle finished interviewing the notary, Betty Rivera, she clearly stated that I was not the person in her office that signed those papers.

Q How is he so sure? How did he approach this?

A He showed her a photograph of four woman in it that all had kind of the same features, and she said that Maura Burgess is not there. I was in the photograph. She had never seen me before. I was not there.

Page 108: Burgess 143 Pages

193

1 MC COSKER\D!RECT EXAMINATION\STAROPOLI

2 At that time in October of '07 I told my 3 attorney let's try to get them to drop it. This

17-:'\ 4 is out of control. Tell them, look1 it.is not ·~· ":, ~. ,~.:·;.;-~.5 >.·. Maura:. :Th.~ ~.etegt,i~e foun.~ out.sh~ ~i~·IJOt sig11 .•

6 the papers fro·m the notary. I was in !.llY ;J attor.ney's 9ffice. Ms. Staropoli called Ms. Forte

8 and said the police did an investigation. It is 9 not Maura because the notary said it was not ... 10 Maura. If you drop it now and let her have her 11 money or accounts unfrozen, she is not going to go 12 after you for legal fees at this point because it 13 is controllable. If it keeps going on and on it 14 is going to be out of control. 15 Her response to my attorney was, and I 16 was listening to the conversation, is that Maura 17 is the only responsible one out of the four of 18 them and she is is the only one with a job, so 19 they will get the money that way, and Maura is 20 getting a divorce so she will have to buy her 21 husband out of the house and she will have to 22 refinance. When they go for the re-ti, barn, they 23 will get her that way. That is why they would not 24 let it go because I am responsible. 25 Q Any other reasons?

195

1 MC COSKER\DIRECT EXAMINATION\STAROPOLI

194

1 XC COSKER\DIRECT EXAM:NAT!ON\STAROPO~I

2 A . In December 2007 the handwriting expert 3 sent in his report stating it was not my

.4 signature. It was not me. Once again they · -;.~~ .• i.:re(use~ to.letiHo go.;' .:.· •. ;~· .· .~:.;,,,:;·.'.'i .. ;;.J':'.·~~: .. ~7 ·~",: '?:,·: :\~.>

6 Mr. B.auco, in that police re.port, said. .. · · 7 that Mr. Burge$S stole.his identity and forged his 8 signature in March of '06 but yet gave him 'papers 9 to have signed and notarized in April of '06. 10 That doesn't make any sense. 11 Why if you are saying that someone did 12 something to you in March with forgery and 13 identity theft would you give papers in April and 14 not even speak to the person you are supposedly 15 lending money to. 16 Mr. Sergio was a convicted felon and did 17 a lot of time. I find that such an accomplished 18 business man would lend money to someone like 19 that. It doesn't make any sense. There is a lot 20 of reasons. 21 Q After you started this litigation, did 22 another litigation come to your attention? 23 A Yes. 24 Q Please explain to the Court that one? 25 A The company Webuilt.

196

1 2 MS. FORTE: Objection as to the 2

MC COSKER\DIRECT EXAMINATION\STAROPOLI

issue. 3 relevance. And I would want counsel to 3 4 make an offer of proof before allowing this 4 5 witness to testify to other legal 5 6 proceeding that are pending in Westchester 6 7 County that have absolutely no relationship 7 8 to my client, Mr. Bauco or Mr. Andrew 8 9 Gambardella. 9 1 O THE COURT: What was your question to 1 O 11 the witness? 11 12 Q I asked her ifthere was any other 12 13 pending litigation, and she said, yes, it has to 13 14 do with Webuilt. 14 15 THE COURT: Pending litigation? 15 16 MS. STAROPOLI: That has something to 16 17 do with this case. 17 18 MS. FORTE: That has nothing to do 18 19 with this case. 19 20 MS. STAROPOLI: That is not true, your 20 21 Honor. 21 22 There is so much connection between. 22 23 Webuilt and Mr. Bauco. It is. so funny that 23 24 the notary who signed these documentsalso 24 25 forged the document of Webuilt on the same 25

THE COURT: There are litigations pending?

MS. STAROPOLI: Correct, against Webuilt. We have plenty of connections with it being his place of business.

THE COURT: There is no decision yet on that case?

MS. STAROPOLI: No. There has been a document prepared which was forged and notarized by the same notary.

MS. FORTE: The document in question was not signed by Mr. Bauco. The document in question was not signed by Mr. Gambardella. The document in question was signed by the owner of that business. Mr. Bauco and Mr. Gambardella have absolutely nothing to do with that litigation.

MS. STAROPOLI: Your Honor, I believe that Webuilt had a connection. Webuilt produced that document.

MS. FORTE: What document? THE COURT: If there is no

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1 MC COSKER\DIRECT EXAMINATION\STAROPOLI 1

2 adjudication yet, how can -- 2

3 MS. STAROPOLI: Because this case is 3

.. () 4 pending. It is in the final stages.· .. 4 . ~ .. i; ":: . . • .• f:·· 5 •.. " ':; ·;;.THE COURT: . It is·pendin·g.\>~ ;: : . :"·'.' :·>.&·:·' ..

6 . MS. STAROPOLI: Your Honor, there is 6 ... 7 some relevance. The question is·.not as to 7.·

8 the forged document with that case. 8

9 Ms. Forte was the attorney, her firm 9

10 was the attorney of record for that also. 10

11 So there is a .lot going on here. They have 11 12 withdrawn themselves for non payment 12

13 THE COURT: I'm sure a lot is going 13 14 on and still is. How does that impact -- 14

15 MS. STAROPOLI: Because it shows -- 15

16 THE COURT: No. 16

17 MS. STAROPOLI: Your Honor, please let 17

18 me finish? 18

19 This thing with Webuilt with a forged 19 20 document prepared by Webuilt went to a 20

21 notary forged and notarized by the the same 21 22 notary used in this action. Then they took 22

23 that forged document went to this person 23 24 and got what they wanted. They got a check 24 25 that they deposited into their account. 25

0 . 199

1 MC COSKER\DIRECT EXAHINATION\STAROPOLI 1

2 MS. STAROPOLI: If you look at a 2

3 portion of it, it says, a hundred and 3

4 something thousand dollars. Most of them 4 5 were L Jam, and they could not find the 5 6 records on her because she didn't have an 6

7 account and you could only pull those two. 7

8 So there is a connection between 8

9 Webuilt and Mr. Bauco's credit card. 9

10 Now Webuilt is also involved with 550 10

11 Realty and Sand S Parkway. Too many, too 11

12 many, and the same notary is used on both 12

13 documents. 13

14 THE COURT: How can I bring to this 14

15 case the allegations in another case? 15 16 MS. STAROPOLI: Your Honor, similarity 16 17 of the documentation and the notary. It is 17

18 a forged document notarized by the same 18

19 notary. The exact same notary. That is 19

20 why the DA is investigating. 20

21 The police are approaching the DA 21

22 about this. Detective Benjamin of the New 22

© 23 Rochelle Police Department is going forward 23 .

24 with this evidence against Webuilt, 24

25 Mr. Biagoni and Mr. Bauco. It is the same 25

198

MC COSKER\DIRECT ~XAMINATIDN\STARO?OLl

But there is relevance because it is the same people involved with the same action.

MS. FORTE: It is not the same people. ,,· .. :Do.you know this.is a.real Courfof:law· :. : .. ~'i'··i:Ci .. ·,:Y>·,

. where you need burdens of proof. '.You" . .. .. ,. .. ; cannot make allegations.- ·. ,. . · . · · ··' ;.

MS. ST AROPOLI: Let's look at the proof.

Mr. Bauco owes 550 Franklin Avenue. At the time his place of business .550 · Franklin Avenue.

MS. FORTE: He just testified that he didn't own it when they were there.

MS. STAROPOLI: He can say whatever he wants. I have proof.

MS. FORTE: Of what? What do you have proof of?

THE COURT: One at a time. MS. STAROPOLI: Mr. Bauco, let a

company, that he has nothing do with, use his credit card freely by their employees to charge. Hundred of thousands of dollars were charged by Webuilt.

MS. FORTE: Hundreds of dollars?

200

MC COSKER\DIRECT EXAHINATION\STAROPOLI

notary. Mr. Bauco we have been told is

actually a silent owner of this company. MS. FORTE: Your Honor, I think we

should let the criminal proceedings stay with the police department and with the appropriate authorities.

Right now for a lay person to testify and summarize about a litigation where there are only allegations. There has been no know dispositive findings yet in this case. It is completely ridiculous.

If you think about it from a realistic point of view, if Mr. Bauco is such an experienced businessman, and he was involved, why would he keep pursuing this claim if he was involved in a criminal act. It would be nonsensical for him to continue this.

MS. STAROPOLI: She is the attorney for Webuilt, her law firm and also for Mr. Bauco and also for Mr. Gambardella. Webuilt got involved with her law firm because of Mr. Bauco. Right there is an

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1 MC COSKER\DIRECT ~XAMINATIONISTAROPOLI 1

2 ' ·issue-;·- 2 • 3 MS. FORTE: There is absolutely no 3

{.""'\ 4 · ~-~··.issue,-and-hundreds of times my clients 4 . •• 1:~ ·:' - :; "5 ~ ~·:n;::f.::;e·(er·,f'riEinds oHheitS.to niY office: What'. ... " ,; ~:· ~ 5:~>'. · ...

© .

@ . -

6. . .. : is·the conspiracy behind that? 6-.

7 · MS. STAROPOLI: Mr. Bauco referred 7 8 them because it is his company, your Honor. 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MS. FORTE: I am personally offended. I have been practicing law for 15 years. I have never had another professional, I am going to use that word in quotes, attack my credibility as Ms. Staropoli has done during this proceeding and through this entire course of events.

First I don't like the negative inference towards my firm, towards my client. And I don't appreciate her client listening to a portion of my conversation, allegedly, listen to a portion of my conversation with her without telling me the client is on phone.

MS. STAROPOLI: Your Honor, first of all I have not accused her personally of anything. I take offense to her making

203

PROCEEDINGS

THE COURT: Friday the 20th? MS. STAROPOLI: I am not available. I

am in Family Court on trial. THE COURT: We have a little bit of a

problem because on the 24th I am under going bypass surgery. So I won't be available for the entire month of April. I pick up my calendar here in May. I could be available May 11th. You don't want to wait that long, I don't think.

MS. STAROPOLI: Are you here on the 17th.

THE COURT: The Court is busy on that

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9

10 11 12 13 14

date. 15 MS. FORTE: I will be on vacation the 16

week of May 11th. 17 THE COURT: Will you be just as good 18

on May 20th? 19 MS. STAROPOLI: Yes, that is fine. 20 MS. FORTE: That is good. 21 THE COURT: To be on the safe side 22

tomorrow or soon thereafter, call Ms. 23 Leitner and just double check and make sure 24 it is clear with her. 25

..

202

these statements. I have done nothing against her. I am saying there are some unclear things here. Tha~ is all Lam. .. . 'saying. -I have·a1scl'spokEfn::u:> her.aboof:!i::'.:- ,·'·".' representing both-these.people ..... ;.. " -- •· ..

MS. FORTE:· Would you try to be clear'··:·.· for one point in the day.

THE COURT: All right MS. STAROPOLI: Now who is being

unprofessional. THE COURT: As a matter of fact we

don't have an awful lot of time to finish this. I don't know that we are going finish this. We have quite a bit of testimony and quite a bit of cross-examination, I suspect.

MS. FORTE: Yes. THE COURT: Maybe there is no point in

continuing at this point since we will not be finishing.

MS. FORTE: I agree, your Honor. THE COURT: Let me ask you --MS. STAROPOLI: I know my calendar in

my head.

204

PROCEEDINGS

Tentatively I am going to schedule it for Wednesday, May 20th.

MS. FORTE: That is fine, thank you. THE COURT: I am sorry we are not able

conclude and we are going over so long, but it is something I was supposed to have done a long time ago.

MS. FORTE: That's fine, your Honor. MS. STAROPOLI: That is all right.

·:: .. ~·

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205

2· · CERTIFICATION

- 3 · ~ . 4 . ·'<·. " The foregoing is a record of the above · \.~ • .;.~(., ,.,_·,5.,:,'~;YdTiatter on:.this 10th .day of March, 2009. ·

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12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Page 112: Burgess 143 Pages

3

Page 113: Burgess 143 Pages

1

1

2 SUPREME COURT OF THE STATE OF NEW YORK 3 COUNTY OF WESTCHESTER 0 -----------------------------------------x

. , .. :"'· ;. >~.;.-,.·:·:.~~;:.~~:~;,MB:i~~!~~ •. ,, ., 6 -against-

7. MAURA BURGESS.t d t{ ) De1en an s. 8 iN5Ex"ii91"9ai2oor·-------------x 9

----------------;~------------------------x 10 FRANK BAUCO, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Plaintiff{s), -against-

MAURA BURGESS.t d t{ ) De1en an s. iNDEX"ii91"99i2oof"""""""""""""""x

~~~T;fillEtT~R CQ,UNb<.~?URT HOUSE %~~l;!, ·~~~~J/~·~~ ~lr601

BE F 0 RE:

~5'Jtcfa'fHJ"a~ffi'f/ cfft.~2-PPOLA

JANET PENNA SENIOR COURT REPORTER

3

PROCEEDINGS

THE COURT: I am not going to have you go over anything that you have covered previously. However,when was the last time we met? How long ago?

MS. FORTE: March 10 of 2009. THE COURT: I had surgery at that

time. Very briefly for the record tell me what relief you are asking for?

MS. STAROPOLI: I am asking for relief for attorney fees with regard to this action. There were promissory notes and confession of judgment that were signed by Mrs. Burgess, allegedly, and then we had

a trial on that before Judge Liebowitz. Judge Liebowitz found that they were

forged, her signatures, after a somewhat police investigation and a handwriting report. I had asked for attorney fees with regard to the matter. He referred that for trial on the issue of attorney fees. That is where we are.

THE COURT: Your application is for attorney fees?

MS. STAROPOLI: Correct.

1 2 3 4 5 .. ,· 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

2

-" A P P E A RA N C E S:

AN &~ GBER];, ESQS. a.ev-for efenuant Palm r ve e

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4

PROCEEDINGS

MS. FORTE: Your Honor, if I could be heard so we can segway into today's hearing.

THE COURT: Of course. MS. FORTE: There was testimony at the

first day of the trial. My clients, I represent Mr Frank Bauco and Mr. Andrew Gambardella. They made a loan to S and S Collision or the name of the business Parkway South, Collision, d/b/a/ S and S Collision. Andrew Gambardella testified at the first day of the hearing that he had wired in $75,000 into the business account of this Collision Company.

Frank Bauco testified to the loans that he made throughout a set period of time, credit card transactions that he made throughout a set period of time, loaning the money to the business. When the loans were made my client asked that promissory note be drafted and asked that confessions of judgments be drafted to secure the loan.

The owners of the business on paper

,·.:

was Mrs. Maura Burgess, a woman by the name

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5

1 PROCEE::'.'1 N~S

2 , if Jannett Sergio .. Those were two the 3 50 percent owners. Their husbands

'"~(),·.,:: .. ,.;: .•.; .'.;,,;;,;::;:.~!~l~ear~~:~r!i:t~eR~~~a;: !~rg~ss : ...... ":~<·'.:'": ··'.:. ,:··.· f·'.' ·• · · operation of the business. When my clients

" .•.. + · : .. :.-::-_ 'j · · .. :· ::~·loaned the $75, 000 to the !>usiness they

8 .. ·asked that the business sign the promissory 9 .. note, the known business sign a corporate

10 confession of judgment and that all four 11 individuals signed a confession of judgment 12 personally guaranteeing. 13 Mrs. Burgess, Jannett Sergio, Steven 14 Sergio and Richard Burgess all returned to 15 my clients a signed and notarized document. 16 There was a default on the note. That 17 is undisputed. The company did not pay 18 back my clients. 19 My client took enforcement actions. 20 Mrs. Burgess's accounts were attached. As 21 soon as she realized that her accounts were 22 attached she came to this Court, moved by 23 order to show cause, claiming that her 24 signature was forged. 25 Ms.Staropoli started an investigation

1 2 3 4 5 6 7 8 9

10 11 12

13 14 15 16 17 18 19 20 21 22 23 24 25

7

PROCEEDINGS

because of a pending case with one of the partners in Ms. Staropoli's firm that she was named to be the executor, I believe.

MS. STAROPOLI: We were representing her father's estate when he passed away.

MS. FORTE: So Judge Lefkowitz had to recuse herself. Went back to Judge Liebowitz and he referred the matter to yourself.

What is pending before your Honor, is Mrs. Burgess's application for attorney

fees and I guess defendant's counsel is resting upon the argument that the litigation that my client sought to collect the two $75, 000 loans were frivolous because there was no contractual agreement to pay attorney fees. And as far as I know under New York State Law, with an absent contract one party can only collect from another part attorney fees if the litigation was in fact frivolous. That is where we stand now. My client's application to enforce the judgment which they received after loaning the money to

6

1 ?ROCEEDISGS

2 with respect to the notaries and who 3 obtained these fraudulent signatures. 4. Ms.Staropoli hired a handwriting expert.

, 5 .. : •. •~ .. .':. .~.,.~: Judge Lefkowitz set ifd6wn for a ' ·: · : ·~ ' -6 .. ; .. · friaf Th~·issue at ~ti at framed t~ial --7 : that trial was held back in March of · 8 2008 -- was, was Mrs. Burgess's signature 9 forged. Judge Lefkowitz unfortunately had

10 a doctor's appointment and Justice 11 Liebowitz heard the trial. Judge Liebowitz 12 rendered a decision saying indeed that it 13 was not Mrs. Burgess's signature. The 14 notary was called to the stand. The 15 handwriting expert was called to the stand. 16 The detective who investigated the case was 17 called to the stand and that was the 18 decision.

19 At the very end of the hearing 20 Ms.Staropoli made an application for 21 attorney fees. When Judge Liebowitz 22 rendered his decision he said that the 23 signature was forged. He referred back to 24 Judge Lefkowitz the issue of attorney fees. 25 Judge Lefkowitz had to recuse herself

1

2 3 4 5 6 7 8 9

10 11 12

13 14 15 16 17 18 19 20 21 22 23 24 25

8

PROCEEDINGS

the business. MS. STAROPOLI: Judge, to clarify,

Mrs. Burgess has always disputed the loan with regards Mr. Bauco. She was never on that bank account. She was never a recipient of that money it went into the business supposedly. There is not an iota of proof that Mr. Bauco, with the exception of the credit cards, that said loan was made, even though we repeatedly stated that.

MS. FORTE: Mr. Bauco is going to be called as a witness today.

We have checks that were written. We have checks that he was allegedly paid back that had bounced, and we have the bank statements from the business accounts.

I don't really want to get into more arguments. We can do closing statements for your Honor. We can submit post hearing briefs if you like. Whatever your Honor would like.

However, the money was loaned to the business. Mrs. Burgess at that time was 50

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.~ 10 11 . 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

9

?ROCEEDINGS

percent owner of the business. Whether she has access to a bank account or whether her husband, who she is now divorced, at the ·

;,;,tt~~· ~;~.:w,as running the-b~siness .. That is.·· .... undi~puted, Judge .

. . I _~till don't see how all of Ms. Staropoli's arguments go into the frivolous. But that will be addressed in post hearing briefs.

MS. STAROPOLI: As I have stated before, there was no, loan from Mr. Bauco . It was to Mr. Burgess based on Mr. Bauco's documentation and his own affidavit. So a personal loan to Mrs. Burgess's ex husband is not the responsibility of hers.

That's why there is a dispute and that is why we are saying that it is frivolous, your Honor.

No one ever spoke to Mrs. Burgess about this matter. No one every spoke to her about the loan. There is contradictory in Mr. Bauco's affidavit as to when he got the notarized documents as opposed to when it was notarized. so there are --

11

BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

Were you ever provided any evidence that Mr. Bauco made this loan of $75,000?

MS. FORTE: Objection, leading. THE COURT: I will allow it. You may

answer it. A No, I was not. The only evidence that

we were given were credit card statements that had charges on them. There were checks written back. The exact dollar amount I am not sure of. Mr. Bauco stated in Court the last time that he had lent cash to Mr. Burgess previous to these documents being signed and I believe he said after these documents were signed. But he has no proof of this cash he supposedly lent.

THE COURT: All right, next question. Q Can you just explain to the Court why

you believe that this case is frivolous against you?

A Multiple reasons. Number 1, there is no proof of this loan on Mr. Bauco's part.

Mr. Gambardella, the other plaintiff did present bank statements. I could not get the bank statements because I was not on the bank account. So I was unable to get that from the bank. I was

10

1 PROCEEDINGS

-2 THE COURT: · Let me hear· the testimony .. -

3 Let's proceed. 4 .'.;. " ' ' . 'MS. STAROPOLI: 'Tnank you. 5 ..• , ..... ·>'::;;".l:Will continue With Mrs:'sl.frges~·~·. 6. .. . testi~ony.'.-_ -· · · ·

7 8. 9

10 11 12 13 14

. ,, . THE c·ouRT: Please raise.your right hand.

Do you swear that the testimony that are about to give will be the truth, the whole truth, and nothing but the truth?

THE WITNESS: Yes. THE COURT: Please be seated. Give

you full name and address to the Court 15 Reporter. 16 A Maura, Mc Cosker, M-C-C-0-S-K-E-R. 40 17 Wickford, W-1-C-K-F-O-R-D, Road, New Rochelle, New 18 York, 10601. 19 DIRECT EXAMINATION 20 BY CATHRINE M. STAROPOLI, ESQ.: 21 22 Q Good morning, Ms. Mc Cosker, I am going 23 to try and save some time I am going to start 24 where we think we ended last. I am trying to 25 avoid repetition.

12

1 BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

2 presented with bank statements that showed that 3 Mr. Gambardella did lend $75, 000 through a wire 4 transfer to this company. 5 Mr. Bauco had never shown any proof at 6 all of a loan in any way. Cash, I don't know how 7 you prove cash as a loan. 8 Number 2, the day that all my bank 9 accounts were frozen, Mr. Sergio who also signed 10 these papers called all around looking for me, and 11 the people that I work with got in touch with me 12 on my cell phone. I was actually up here filing 13 papers after having gone to New Rochelle Police 14 Department. I found out about the incident when I 15 went on line to check my bank accounts. They were 16 frozen. I investigated through the bank, with the 17 levi department. They told me what had happened, 18 they provided me information. I went to the 19 police department. I knew I had not signed any 20 papers. I filed a police report. I came to 21 Courthouse to file papers to show and order to 22 show cause because that is what I was recommended 23 to do. That was so they could not take the money 24 out of the bank accounts. 25 At the time I was in the middle of a

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. ~ .....

13

1 5~RGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

2 very bad c;livorce. If they had taken that money I 3 was going to have a problem. 4 When I finally got back in touch with 5 . . .. '.; ·Mr. Sergiq I called hi.m from a pay P.hone

· >-.6· · ' . '._,. ··hif re. ·My: attorney was present.

7 MS. FORTE: Objection, your Honor. 8 This line of testimony that is going to be 9 profited by the witness is hearsay. Mr.

10 Sergio could have been subpoenad to appear. 11 THE COURT: Sustained. 12 MS. STAROPOLI: Your Honor, the 13 . problem is Mr. Sergio has left. He has 14 moved out of state. I can't even locate 15 him. So this was a conversation that she 16 had with him. Ms. Forte has been aware of 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9

10 11 12 13 14

15 16 17 18 19 20 21 22 23 24 25

it. I told her about it many times. This is a personal conversation she had and I was there as well, your Honor.

MS. FORTE: Your Honor, it is still hearsay. The legal definition of hearsay. Ms. Mc Cosker's testimony regarding an out of the Court statement offered in Court for the truth of its content is hearsay.

THE COURT: Let's move on. I will

15

BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

counsel had with you? MS. STAROPOLI: Yes. Aboutthe case

with my client there. MS. FORTE: I was not told that the

client was listening also. I was not on speaker phone, and apparently opposing counsel and her client had the phone to her ear.

MS. STAROPOLI: I repeated the statements that you said to me.

MS. FORTE: That is even better, your Honor. The witness didn't actually hear the words come from me on the other end of

the telephone line but rather the witness heard Ms.Staropoli's translation of what Ms. Staropoli heard during my conversation with her.

Now I renew my objection. MS. STAROPOLI: It is also in the

affidavit which I submitted on behalf of Ms. Mc Cosker, saying that the only reason why they are pursuing Ms. Mc Cosker was because she is the only responsible person. She has a home. This is the whole crux of

14

1 BURGESS-MC COSKER\DIRECT EXAM!NATION\STARO?OLI

2 sustain the objection. 3 Q Can you continue on why you believe it

. 4 is frivolous? 5 .· .· ... ,, ,;c~ ;;;~. YQUf;,c_onvers.~tlon thatl over heaf~·fn ;. 6 . .,.Y()Ur p,ffice. · · "· ' ..

,7 :_THE WITNESS: . Your l:fonor -- it is 8 another conversation I heard. 9 . MS. FORTE: Your Honor, this is

10 precisely where we left off the last day of 11 the hearing. Ms. Mc Cosker was testifying 12 about a telephone conversation that I was 13 having with Ms. Staropoli regarding 14 this litigation when Ms, Mc Cosker was 15 still representing herself pro se. 16 MS. STAROPOLI: That is not true. 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MS. FORTE: Ms. Mc Cosker is going to offer testimony about a telephone conversation that I allegedly had with Ms.Staropoli and for the same reason it is hearsay.

MS. STAROPOLI: Your Honor, she can question her about the conversation whether it was correct or not. She is here.

THE COURT: It is a conversation that

16

BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

it. All these --THE WITNESS: It was •• THE COURT: Wait a minute. Your

lawyer is speaking. THE WITNESS: Sorry. MS. STAROPOLI: It is in the affidavit

submitted to the Court, your Honor. Clearly that Ms. Mc Cosker signed before Judge Lefkowitz which stated it as well.

MS. FORTE: That does not make it exempt from the rules of evidence and that it is still hearsay.

Whatever statements Ms. Mc Cosker put in her affidavit -- these were affidavits which were submitted regarding her order to show cause which led Judge Lefkowitz to write an order setting forth that framed issue hearing that I indicated to the Court back in March of 2008.

Those issues were addressed in affidavits and in our sur reply and reply affi~avits. We objected to the nature of those comments contained within her affidavit

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,.

17

1 BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

. , 2 MS. STAROPOLI: You did not. I have 3 them right here. You did not object to the

Q,, .. i .. ; , ::· ; -'~r~~~~eD~fp~:~~e com~en_t~:b~;c;~use.it_is th~·. 6 · I can show that you didn't contradict · . 7 a,nything that I stated or Ms. Mc Cosker 8 stated. 9 MS. FORTE: Your Honor, if Ms.

1 O Staropoli wants to offer in documentary 11 evidence that fine. If she want to submit 12 affidavits on issues thathave already been 13 addressed by the Court, that's fine. I 14 will submit my reply affidavits. But to 15 have this witness testify is still hearsay. 16 MS. STAROPOLI: She is testifying to 17 something that she has already written 18 down, your Honor. Which she has presented 19 to the Court. 20 THE COURT: Let's back up a little 21 bit. The objection to the witness 22 testifying to a conversation that she over 23 heard between the two of you? 24 MS. FORTE: What she just stated right 25 now on the record was that she didn't even

19

1 BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

2 Benge. He started an investigation, and went to 3 the notary with photographs. I was in the 4 photographs. He asked if any of these people were 5 Maura Burgess and she clearly stated, no. I was 6 in the pictures. So that proves right there that 7 I had not been the person who had signed the 8 papers. He informed me and Ms.Staropoli. 9 Ms.Staropoli informed Ms. Forte that, look Maura 10 didn't sign these papers. If you drop it now we 11 will leave well enough alone. She is not going to 12 ask for attorney fees. That will be the end of 13 it. 14 THE COURT: Who made that statement? 15 THE WITNESS: My attorney offered this 16 to the plaintiff's. 17 THE COURT: Proceed. 18 A It was evidence. I had not signed it. 19 I was the only person of the four people saying my 20 signature -- I was the only one against these 21 people for a reason. It was not me. I had 22 nothing do with it, and they knew it. 23 They were coming after me because they 24 knew I was getting divorced. It was a very bad 25 situation. I have little kids. They thought that

1 2 .·~· '.

3

·,4 >··

·6.':

? . 8 9. 10 11 12 13 14 15 16 17 18

18

BURGESS-MC COSKER\OlREfT ~XAMINATION\STA~OPOLI

over hear the conversation. She was listening to Ms. Staropoli's repetition of statements that apparently or allegedly I rnade,to M~. Staropol'i:during our telephone ·. conversation.

THE COURT: This is during the conversation you were telling her what was said?

MS. STAROPOLI: Yes. I said to her, as I understand it this is the reason why your client will not back off of my client.

MS. FORTE: Completely irreligious to the issue that is before the Court today, your Honor.

THE COURT: I am going sustain the objection. I don't like that. Let's move on.

19 Q So you said that you went to Detective 20 Benge correct? 21 A Yes. 22 Q Can you explain why that you believe is 23 part of the frivolous matter? 24 A I went to the New Rochelle Police 25 Department and my case was referred to Detective

20

1 BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

2 I was going to either have to sell my home or buy 3 my ex husband out of the house. To do that with a 4 lien on my home they were going to get paid. 5 Q Was there any other reasons why you 6 believe it is frivolous? 7 A I am trying to think of all things I 8 said already. Give me a second. 9 Well I don't understand. How astute 10 businessmen who are in the business of 11 lending money as they have stated in Court, 12 can give a loan and give papers to people 13 and say have these people sign them, and --14 15 THE COURT: That is your 16 interpretation of what happened. just tell 17 us what happened. 18 A I think that that is part of the reason. 19 THE COURT: Give her the question. 20 Q Why do you think that this action is 21 frivolous? 22 A I think they knew that by handing out 23 those papers and not calling me about the loan, 24 not discussing the loan with me, and actually 25 having me sign the documents in front of them, in

' .

.....

Page 118: Burgess 143 Pages

1 . , 2

3

21

BURGESS-MC COSKER\DIRECT EXAMfNATIOR\STAROPOLI

front of a notary is the reason -- the reason that . 7 ·,

they did it that way so they could come after me

-'~ ....... ::. r .. ,..,.'jµ. ...... ,<"•••

in the end. I was the only one that had anything : out<.of:all .the~e. pe,ople. · . . . . . , .. ·• .·::.-: ...

~

6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I don't know. You go into a ba11k to g~t · a loan you need to be there in person: You need to sign it in person. You need to discuss the · loan. The bank doesn't hand out papers. This is a business that they say they do. If this is what they do and this is how they earn a living then you should do it properly.

MS. STAROPOLI: Is there anything else?

MS. FORTE: Objection. Asked and asked.

THE COURT: Next question. Q Ms. Mc Cosker, after the handwriting

report came in what took place then? A We once again told the plaintiff that it

is not my signature. MS. FORTE: Objection. Ms. Mc Cosker

just testified to this. MS. STAROPOLI: We said Detective

Benge. I said the handwriting expert's

23

1 BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

2 (OFF THE RECORD.) 3 MS. FORTE: Your Honor, with respect 4 to this document that I was just handed. I 5 am looking at the first sheet for the 6 invoice for attorney fees, and on page 2, 7 of an August 6, 2007 invoice it refers to 8 in the middle of the document previous 9 balance --10 MS. STAROPOLI: I deducted that. If 11 you look here, I deducted from the amount. 12 It comes out perfect. I deducted it. 13 THE COURT: Let's go off the record. 14 (Whereupon, a discussion was held 15 off the record.) 16 THE COURT: Any objection? 17 MS. FORTE: No objection. 18 THE COURT: We will mark this 19 Defendant's B in evidence. 20 (Whereupon, Defendant's Exhibit No. B is 21 marked in Evidence.) 22 Q What is the total amount due as of your 23 June 30, 2009 bill? 24 A $45, 023.81. 25 Q Since August 3 of 2007 through June 30

22

1 BURGESS-MC COSKER\~IRECT EXAMiNATION\STAROPOL:

2 report . 3 MS. FORTE: Withdrawn. 4 A After they would'not accept\vhat we had

, , . . • . \.. ·r. ~ .• . . . .. ~ ... :"" -~ 5.:· ·offered them.that I wi:>ulan'tgo afterthem for·· 6. attorney fees. Then we hired the handwriting · · · · ..... , · · ·

7 expert. I had to spend more money. Once agai~ we ,. _. 8 gave them the handwriting expert's report'which 9 clearly stared that it was not my signature. Once

10 again we said if you have just let me out of all 11 this we will stop it now. Once again their answer 12 was no. 13 Q Ms. Mc Cosker, can you tell the Court 14 how much you owe in attorney fees? 15 A Approximately at this point over 16 $60,000. 17 THE COURT: That you have incurred? 18 THE WITNESS: Yes. This has been over 19 two years. 20 Q Ms. Mc Cosker, is there anything that 21 can refresh your recollection as to the full 22 amount? 23 A If you have a copy of the bill, yes. 24 MS. STAROPOLI: May I have a moment. 25 THE COURT: We will take a moment.

24

1 BURGESS-MC COSKER\DIRECT EXAMINATION\STAROPOLI

2 of 2009; what are your total payments that you 3 made? 4 A $16,725,000. 5 THE COURT: What period is that? 6 MS. FORTE: Since litigation starting 7 August 3, 2007 through June 3 of 2009. 8 Q What is the total amount you spent on 9 this litigation?

10 MS. FORTE: Objection to the form the 11 the question. She has not spent -- ask and 12 asked and answered. 13 Q What is the total amount of cost with 14 regard to this litigation? 15 MS. FORTE: Objection to the form of 16 the question. 17 THE COURT: I will allow it. 18 A Total bill is $61, 748. 81. 19 THE COURT: Let me see what you are 20 holding please? 21 (Document Handed to the Court.) 22 THE COURT: Continue. 23 Q Ms. Mc Cosker, is there anything the 24 Court should know with regards as to why you 25 should be awarded attorney fees?

Page 119: Burgess 143 Pages

25 26

1 BURGESS-MC COSKER\DIRECT EXAHINATION\STAROPOLI 1 9URGESS-XC COSKEP\~ROSS EXAM:NA7ION\F~RTE

. 2 A I think the main thing you should know 2 · A On paper, yes. · ' .·.: 3 is that I don't have any proof of any type of loan 3 Q When you say on paper; what do you mean? 4 .. to Mr. Bauco. 4 A I never went there· cir had anything to do

11 .. 5 ·· :· :.;< ·)'thi!"!k they came after ha.d IT)ebecau$e ':••,_..i.,5· .·,.with :the business: I never de~lt\\ii.th anyone in ·· :•.· - . ; ; ::c-: 6 they t~ou.g~t th.at I was going to hay~ to buy my 6. running --1 had nothing to do with it other tharf · • · ·-· ·· · ~. 7 ex husband ~~t .of my house. It is important to 7 I put my name on it because my ex.husband·could · 8 note none of the other defendants in this case 8 not get a license with the OMV. That is all I ha·d 9 have anything to say and have not objected to · 9 to do with it. 10 owing any of this money. I am the only one. I 10 Q When you were 50 percent owner of the 11 had nothing to do with it. 11 business you were married to Richard Burgess; 12 MS. FORTE: Objection. 12 correct? 13 THE COURT: Objection sustained. 13 A Yes. 14 The arguments we will leave to your 14 Q You were sharing a residence with him 15 counsel. 16 A Then I have nothing. 17 MS. STAROPOLI: Nothing further. 18 THE COURT: Cross? 19 MS. FORTE: Yes. Thank you, Judge. 20 CROSS EXAMINATION 21 BY DENISE A. FORTE, ESQ.: 22 23 Q You are 50 percent owner of the business 24 known as Parkway South Collision d/b/a S and S 25 Collision; correct?

27

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 examination, Judge. 3 THE COURT: Overruled. 4 Q You were you 50 percent owner, and your 5 husband ran the business? 6 A Yes. 7 Q At the time the business was being 8 operated you were legally married to your husband 9 and sharing a residence with him; correct? 10 A What date are you talking about? 11 Q In April of 2006? 12 A Yes. 13 Q The promissory notes, I am going to show 14 you a document that I would like to have marked 15 into evidence as plaintiff's exhibit 2 for 16 identification. 17 THE COURT: Please mark that. 18 (Whereupon, Plaintiff's Exhibit No. 2 is 19 marked in Evidence.) 20 Q Ms. Mc Cosker, please take a look at 21 this document. Let me know when your finished. 22 Look up at me. 23 A Okay. 24 Q You testified that your husband ran the 25 business, correct, on a day to day basis?

15 correct? 16 A Yes. 17 Q You have two children with him; correct? 18 A Yes. 19 Q You put your name down on paper as 20 50 percent owner and your husband ran the 21 business? 22 MS. STAROPOLI: I object, your 23 Honor. She has already asked and answered 24 the question? 25 MS. FORTE: This is cross-

28

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 A Yes. 3 Q Do you know if he borrowed money for the 4 operation of the business? 5 A No. 6 Q Did you know that $75,000 was wired into 7 the business from Andrew Gambardella? 8 A Not until I was shown evidence of that 9 way after all this happened. 10 Q When you are testifying today; when is 11 the first time you are saying you knew of the 12 $75,000 wire? 13 A I can't give you an exact date but it 14 was when I was given bank statements after this. 15 Well into this. 16 I found out July 12, 2007 that my bank 17 accounts were frozen, I really could not honestly 18 give you the exact month I was given the bank 19 statements as to some type of proof that 20 that Mr. Gambardella was giving money. That was 21 the only proof that I was given. I couldn't get 22 it. It was not my bank account. I don't know 23 when I was given them. It wa~ way after the fact. 24 Q Do you recall testifying in March of 25 2008 at a hearing before Judge Liebowitz?

Page 120: Burgess 143 Pages

()- . ' ..

29

1 BURGESS-MC COSKER\CROSS EXAMJNATION\FORTE

2 A Yes. · .. , 3 Q Do you remember testifying at that 4 hearing to_ a .. respons.e to the question, "to the

. ~·; )?~.st:O~ vou.r:kn.o'1'Jedge did M~.J~urges:s· receive. !,\ny 6. "!'oney as .a ~esul~ of this promissory note that was 7 exec~ted."; do yo.u recall what your response was? 8 A No. 9 Q I am going to show you a document that

10 I'd like to have marked for identification as · 11 plaintiff's 3. 12 (Whereupon, Plaintiff's Exhibit No. 3 is marked 13 for Identification.)

14 Q On a piece of paper which I have just 15 marked for identification as plaintiff's exhibit 16 3, there were four pages; can you please read page 17 82 of the document? 18 MS. STAROPOLI: I have not had a

19 chance to see that document. 20 THE COURT: Show that to counsel.

MS. FORTE: Yes, your Honor. (Document Shown to Defendant's

Counsel.( THE COURT: Any objection?

21 22 23 24 25 MS. STAROPOLI: I have an objection to

31

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 It was after the fact when this all started. 3 Q When you say after the fact, was it 4 after your accounts were frozen? 5 A Yes, definitely. Of course. 6 Q Before that did you have any knowledge 7 of the loans that were being made? 8 A No. Absolutely not 9 Q After your accounts were frozen, you

10 were not married to your husband; correct? 11 MS. FORTE: Withdrawn. 12 Q After your accounts were frozen was your 13 husband still residing with you? 14 A No. 15 Q You reside at 40 Wickford Road in New 16 Rochelle? 17 A Correct. 18 Q Your testimony is that the first time 19 you found out about the loan was after your 20 husband moved out of 40 Wickford Road, New 21 Rochelle, New York; correct? 22 A The first time I was given any type of 23 proof of a loan was -- yes, after. Way after. 24 Q My question to you -- you just responded 25 that the first time were you given proof of the

30

1 BURGESS-MC COSKER\CROSS EXAMINATIDN\FDRTE

2 . the whole transcript being admitted. · 3 MS. FORTE: Just page 82 is being 4 marked into evidence. ·· , ·. ·. :.

.5·.~:~·· ,;. ·:· MS. StARbPOi:Jh Yo.u'are'·puttlrig'in the,/~ . 6 whole transcript. ~· · '; '-··" ··· "" ·: ·: ' · • ~. ·

7 MS. FORTE:.· Rip ouf~age 82. I have . 8 another copy. 9 THE COURT: Please mark it into 10 evidence. 11 (Whereupon, Plaintiff's Exhibit No. 82 is 12 marked in Evidence.) 13 Q I would ask to read on page line 2, 14 lines 12 to 16, please? 15 A The question was: To the best of your 16 knowledge did Mr. Burgess receive any money as a 17 result of this prommisory note that was executed? 18 My answer was: To my knowledge there was

19 a $75, 000 wire into a bank account Parkway South 20 Collision from Mr. Gambardella which is an account 21 that I didn't open nor was I a signer on. I had 22 nothing to do with it. 23 Q When did you first find out about that 24 $75,000 wire?

25 A I said I couldn't exactly tell you when.

32

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 loan was after your accounts were restrained and 3 that was after he moved out of your residence at 4 40 Wickford Road; correct? 5 A Is that what I said, yes. 6 Q My question was; when was the first time 7 you found out about a loan? 8 A I had received some type of papers that 9 were sent to my home. I don't remember when. I

10 didn't know what they were about. I was married 11 and with my husband at the time and he told me not 12 to worry about them. They were nothing. I gave 13 them to him. I didn't look into them or see. 14 Other than that I have no knowledge of anything. 15 Q When you said you received some papers; 16 do you recall what the papers were? 17 A No. That may have been copies of these 18 notes or -- see this page doesn't look familiar 19 to me for some reason. I know that there was 20 another page beside the note of confession thing. 21 That looks more familiar. I am sure I have seen 22 them all going back and forth for two years on 23 this. 24 Q To refresh your recollection I'd like to 25 show you a document that I would like to have

Page 121: Burgess 143 Pages

33

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE.

2 marked in evidence as plaintiffs exhibit 4, 3 please?

.. ·@~~::,~~,;;:; ,· ; ... :::.,· '.·~~:·::: ~;,;~ ~T~~~T~oti~~-~:~:~;~:~~on. • .· ·:'.:·" ·... 6 · · THE ·COURT:· Mark that as plaintiffs·

6 .

® .

7. . ~xbil:!lt4 _in evidence. · 8 (Whereupon, Plaintiffs Exhibit No. 4 is

9 marked in Evidence.) 10 Q This is plaintiff exhibit 4, pages 74 of 11 the transcript. Start from the question toward 12 the middle of page: Have you before this time 13 seen this promissory note? 14 A I answered: Yes. Your question was:

15 Can you explain that? 16 My answer was: While I was still 17 married to my ex husband these papers came to our 18 home. I don't remember the date or when but I 19 asked him what they were about. He said don't 20 worry about it. I gave it to him. That was a 21 long time before this day. I thought whatever it 22 was it had nothing to do with me. He'll take care 23 of it. 24 Keep reading? 25 Q No, that is fine.

35

1 BURGESS-MC COSKER\CROSS EXAMINATION\ FORTE

2 Q Ms. Mc Cosker, do you know after --.3 isn't it correct that Parkway South Collision, 4 d/b/a S and S Collision didn't pay back the 5 $75,000 to Mr. Gambardella? 6 A I would have no idea. I have nothing to

7 do with that. 8 Q You are the owner but your testimony 9 here is that you have no idea?

10 A I was never involved in anything with 11 the business other than my name because they could 12 not get a license just like the other wife. I

13 could not tell you what they did.

14 Q Do you have any knowledge that the

15 $75,000 was repaid? 16 A I have no knowledge the the loan other 17 than the proof that there was a wire. 18 Q My question is; do you have any

19 knowledge of the loan being repaid? 20 A No. 21 Q You have testified that you know there 22 was a $75,000 wire. Maybe you learned abjout it

23 after the fact but you knew there was a $75,000 24 into the business account; right?

25 MS. STAROPOLI: Objection. She is

34

1 BURGESS-MC COSKER\CROSS EXAMINATJON\FORTE

2 · Ms. Mc Cos.ker, were these ~papifrs 3 regarding the business that yo1:1 _were 50 percent 4 ·· owner of? > ;

· 5·: · A:;: ;·1.wohfd presume·,ouH':caflit/~e·.106 · ~·-: ····,"'<>:;• 6 percent sure. I don't remembEir'Hle-~xachfate. 7 was 50 percent owner. I can't.tell you 10·0 ' 8 percent. "' ··· .... ,. "

9 Q If you could look at the last page of 10 what has been marked into evidence as plaintiff 11 exhibit 4. It starts with page 75. The question 12 was, on the top of the page: What was the 13 explanation he gave to you? Your answer is what? 14 A My answer was: The explanation he gave

15 me was that is wasn't really a loan and not to 16 worry about it he'll take care of it. 17 Q Does that refresh your recollection as 18 to whether it was loan to the business? 19 A Yes, probably. I would assume so. This 20 is two years. I have been in and out of Court for 21 multiple things. It is a lot to remember two 22 years later specifically. 23 Q Do recall if you knew about the $75,000 24 wire at that point? 25 A Absolutely not

36

1 BURGESS-MC COSKER\CROSS EXAMINATION\ FORTE

2 being argumentative to the client. She 3 answered the question. She said no. Now 4 you are badgering --5 MS. FORTE: Your Honor, my question is 6 very simple but the witness keeps repeating 7 the same response which isn't a response to 8 my question. 9 She keeps responding that she doesn't

10 know about the loan. My question is -- I 11 will withdraw all my questions. 12 Q You do know about a $75, 000 wire that 13 was made to the business? 14 A Yes. 15 Q Do you have any knowledge of that wire 16 being repaid? 17 A I have knowledge of checks written to 18 Mr. Gambardella. For the total amount I have no 19 idea. 20 Q You have knowledge of checks being paid 21 to Mr. Gambardella? 22 A Yes. 23 Q How much? 24 A I have no idea. There in the stack of 25 checks. There were checks written to him.

Page 122: Burgess 143 Pages

37

1 BURGESS-MC COSKER\CROSS EXAMrNATION\FORTE

2 ... :. _q. • 99. you recall the amount of those 3 checks?

· o· · · 4 : IV!$. STAROPOLI: Objection. She asked •.•. ~ .... ,..;., - ,{> .: _.;·:t~ .••. ;:!b.e;qu.~~ion apd sne.ans~ered ltJilready., .:·

l ~ ), '• •,..: '• j. •, .. ,., ••' • • ':, ' -~· • ~ f lw ., '• ;• .I'' • i •> • .. • .!(I

: · · · ·· .· . 6 .. · .. 1• She said that she had no idea what the

,,..

. 7 . amounts are. . ··a·. MS. FORTE: Withdrawn.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6

7 8 9

10 11 12 13 14

15 16 17 18 19 20 21 22 23 24 25

Q D~.you know if the checks were $875? A I don't know. There are stacks of

checks. I just remember seeing his name and checks.

Q How many checks? A I have no idea. Q Let me finish my question.

How much checks do you recall seeing his name specifically on?

A I have no Idea. Q Do you have any personal knowledge on

what steps Mr. Gambardella took trying to enforce the confession of judgment and the promissory note as against the business?

MS. STAROPOLI: I Object. How does she know what Mr. Gambardella personally did. He was here. He could have

39

BURGESS-MC COSKER\CROSS EY.AMINATION\fORTE

these questions to Mr. Mc Cosker. THE COURT: One at a time. MS. STAROPOLI: Let me finish, you

interrupted me. Also we are claiming frivolous based up on; to harass, or maliciously injure Ms. Mc Cosker after proof has been given that it was not her signature on the document, and they continued to pursue it. Also because the action they assert their material factual statements are incorrect in this action.

MS. FORTE: Your Honor, I will get to all of those points. But Ms. Mc Cosker sat

here this morning under oath and testified that one of the grounds why she is entitled to her full legal fees of $63, 000 against my clients, who are already out $150,000, is because we singled her out in our attempts to enforce a judgment.

I want to know what that belief is based upon. I have the right to ask this

· witness that question. She opened the door.

MS. STAROPOLI: Your Honor, she is

38

1 BURGESS-MC COSKER\CROSS EXAMINATION\fORTE

2 testified. ·/.,

3 MS. FORTE: This witness, as I 4 understand, the defendanf's argue for the

· 5 .; · > ~' .• ~·-.application for a'ttorfr~·y.Je°Ef~i·is that fuy: ·. ·: "j/: 6 . client somehow sing.I~ ·ha~Cfed her out or . 7 singled.her out in colle<itio~·proceedings 8 and enforcement proceedjrigs and that is not 9 true.

10 If Ms. Mc Cosker is going to sit on 11 the stand and testify. under oath that 12 Mr. Gambardella and Mr. Bauco only singled 13 her out in enforcement proceedings I have 14 the right to ask her what is her knowledge 15 of the steps that Mr. Bauce and 16 Mr. Gambardella took with respect to 17 enforcement proceedings as against Mr. 18 Sergio, Mrs. Sergio and Mr. Richard 19 Burgess? 20 MS. STAROPOLI: If you can recall Mr. 21 Gambardella's testimony he stated that his 22 lawyer took all of it and he has no idea --23 24 MS. FORTE: That is Mr. 25 Gambardella's testimony. We never asked

40

1

2 3

BURGESS-MC COSKER\CROSS EXAMINATION\fORTE

asking what Mr. Gambardella did. How does she know. She knows what she said. Her

4 accounts were frozen. She testified to· 5 that already. 6 THE COURT: She can answer the 7 question if she knows. If she doesn't know 8 the answer she can say so. 9 Q Ms. Mc Cosker, do you know what steps to

10 enforce the judgment Mr. Gambardella took as it 11 relates to Richard Burgess? 12 A No. 13 Q Do you know what steps Mr. Gambardella 14 took with respect to the enforcement of his 15 judgment as against Steven Sergio? 16 A I believe his accounts were frozen. 17 Q Do you know what steps that 18 Mr. Gambardella took with respect to the 19 enforcement against Jannett Sergio? 20 A I believe her accounts were frozen. 21 Q Do you know what steps Mr. Bauco took 22 with respect to Richard Burgess trying to enforce 23 the judgments? 24 MS. STAROPOLI: Again, your Honor, 25 what she is saying is all hearsay. She

Page 123: Burgess 143 Pages

41

1 BURGESS-MC CCSKER\CROSS EXAM!NAT!ON\FORTE

2 · - heard from Mr. Sergio. His accounts were 3 frozen .

... -.;Q ..... , . .;;.: ,,;,. .. :. ~~:_j:can s:~~~OU~T:. '.f she ~oesn't. know she; ..

. """'· · · , ...... , .. ::· 6 :;:·;-:·:::;,;·: MS. STAROPOLI: Your Honor, the line.· .... ··

)

\' '~.•\ I '' "

:.' .. ' '"of questioning is all based on hearsay. 7 8

9 10 11

MS. FORTE: I am not asking her for the conversations, Ms. Staropoli. I am asking what her knowledge --

MS. STAROPOLI: Knowledge is from a 12 conversation. 13 MS. FORTE: I am not asking her about 14 -the conversation, then, perhaps, your 15 objection would be relevant. 16 MS. STAROPOLI: She is assuming based 17 on those conversations. That is what she 18 is testifying as to. 19 I am objecting to the whole line of 20 questioning because she doesn't know for a 21 fact that Mr. or Mrs. Sergio's accounts 22 were frozen. 23 MS. FORTE: Correct, but she does know 24 for a fact that my client singled her out 25 for enforcement proceeding and is now

43

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 Q What were the steps that Mr. Gambardella 3 took with respect to enforcement against you? 4 A Froze my bank accounts. 5 Q You also testified on direct examination 6 that the defendants were behaving in a frivolous 7 manner because they wanted to put a lien on your 8 home; is that correct? 9 MS. STAROPOLI: I object, your Honor?

10 THE COURT: What is your objection? 11 MS. STAROPOLI: It is not the 12 defendants. It is the plaintiffs. 13 MS. FORTE: The plaintiffs. I

14 apologize. 15 Q You testified this morning that 16 Mr. Gambardella and Mr. Bauco behaved in a 17 frivolous manner because they wanted to put a lien 18 on your home; is that correct? 19 A That is not the reason why they were 20 frivolous. That is what they were trying to do. 21 It was part of being frivolous. It wasn't why 22 they were being frivolous. 23 Q Did Mr. Gambardella put a lien on your 24 home; yes or no? 25 A No.

42

1 B~RGESS-MC COSKER\CROSS ~XAM!NAT;ON\FOR7f.

2 trying to sue my clients for $63, 000"' · 3 That should be permitted in, Judge? 4 . . MS. STAROPOLI: That is her testimony .

. s-::) ·><·.Th~t:is wh.atst)e beiieves;:~:Notwhat 6 someone ·ersetS berief is. = .. J • .~.

· 7 THE COURT: , Let's try to shorten this. 8 You have an objection. I have overruled 9 your objection. Ask the question. You can 10 answer It. 11 MS. FORTE: Yes, your Honor. 12 A Can you repeat the question? 13 · Q Do you know what steps Mr. Bauco took to 14 enforce judgment as against Richard Burgess? 15 A No. 16 Q Do you know what steps Mr. Bauco took to 17 enforce the judgment against Steven Sergio? 18 A I believe he froze his bank accounts. 19 Q Do you know what steps Mr. Bauco did to 20 enforce judgment against Jannett Sergio? 21 A I believe he froze her bank accounts? 22 Q So the record Is clear; what were the 23 steps Mr. Bauco took with respect to the 24 enforcement of the judgment as against you? 25 A Froze my bank accounts.

44

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 Q Did Mr. Bauco put a lien on your home; 3 yes or no? 4 A No. 5 MS. STAROPOLI: Objection, because my 6 client said --7 MS. FORTE: The record speaks for 8 itself. 9 MS. STAROPOLI: Ms. Forte, let me 10 finish. Do not interrupt --11 MS. FORTE: I am allowed to ask 12 13 14 15 16 17 18 19 20 21 22 23 24 25

questions on cross examination. You cannot stand up under the guise of objection and try to say what the witness testified to.

THE COURT: I don't think this is a place for us to learn.

You are raising a question, and I gather are moving to strike some testimony?

MS. STAROPOLI: Ms. Forte stated that my client stated this morning that they attempted to put lien on her home.

MS. FORTE: Can we read back the question? The first question I asked her regarding; isn't it correct that you testified that Mr. Gambardella and Mr.

Page 124: Burgess 143 Pages

45 46

. 1 SURuESS-MC COSKER\CROSS EXAMlNATlON\FORTE 1 BURGESS-MC COSKER\CROSS EXAMINAT!ON\FORTE

.~., ·2 . .. Bauco were frivolous in their attempts to 2 notary is· not in New Rochelle? · ·" .,

3

... ·c··._ .. :·· .. ,_4

...... :. :.;; ... ,:.!-~:.-.;.5 .~ ..... '•' • ,. : ·~' "'A•' .<~''

put a lien on your home? She responded; 3 Q Correct. correct .. Then my follow up question was; 4 ;- ·. : · · · Do'you recall that his jurisdiction is

: . ::~.:·. did·they put a lien on your home?"·. -' · ~.-~ ..•. :, .. :· '.·5.;;·:i·in·NewRbche1I~ and.notarizl3:tion of the ctocument = · ·

' .. ~ . ~ '

-'' ~·:.:' : 6 . ·MS. STAROPOLI: I believe you said; in 6. · to.ok place outSide of New Rochelle, that he could -."· ': 7 your testimony, this morning; didn't you · 7 · not complete the investigation?

··. '. 8 .. 9

say that? 8 A I don't believe he was saying he THE COURT: I have overruled your 9 couldn't complete the investigation. My

1 O objection. Let's move on. · 11 Q · Ms. Mc Cosker, you testified earlier 12 today that Mr. Gambardella and Mr. Bauco were

. 13 engaged in a frivolous manner because of the 14 report that was written by Detective Benge and not 15 taking that report on its face? 16 A Correct. 17 Q Isn't it a fact that Detective Benge 18 never completed his investigation? 19 A I don't know that for a fact. He came 20 to Court. He testified that it was not my 21 signature. That is what he found. 22 Q Isn't it correct that Detective Benge 23 said that the case was transferred because it was 24 out of his jurisdiction; do you recall that? 25 A I don't recall -- why? Because the

10 understanding was that maybe he could not help me 11 press charges.' I would have to go to the Bronx --12 I believe this one was in -- there were two 13 notaries, if I remember correctly. It was a long 14 time ago. 15 MS. FORTE: I would like have this 16 marked in evidence as plaintiff's exhibit 17 5. 18 THE COURT: Are you marking it for 19 identification or offering it into 20 21 22 23 24 25

evidence? MS. FORTE: I am offering it into

evidence. MS. STAROPOLI: What page? MS. FORTE: Page 41,42 and 43. All

three pages.

@ . . .

47 48

1

2 3 4 5 6 7 8

BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

THE COURT: Any objection? MS. STAROPOLI: No objection. THE COURT: Mark plaintiffs exhibit 5

into evidence. (Whereupon, Plaintiffs Exhibit No. 5 is

marked in Evidence.) THE COURT: Proceed.

9 Q Ms. Mc Cosker, I am showing you this 1 O document that has beem marked into evidence to try 11 and refresh your recollection as to whether or not 12 Detective Benge testified that he completed the 13 investigation. 14 If I can draw your attention to the 15 bottom of page 42, line 21, there is 16 question by me -- just so I am clear --you 17 don't have to read it into the record. It 18 is in evidence. Just read that to 19 yourself. 20 A How far? Just the one question? 21 Q The question and then his answer. Does 22 that refresh your recollection? 23 A Okay. 24 Q Does that refresh you recollection that 25 Detective Benge never concluded his investigation

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 as to whether the notaries were forged? 3 A No. It is saying -- No, I don't get 4 that from this answer. That is not what I get out 5 ofthis. 6 Q We can read it into record. My question

7 is --8 THE COURT: Just read it into the 9 record.

10 MS. FORTE: Yes, Judge. 11 Q Question by Ms. Forte. This is on page 12 42 of the transcript line 21. 13 QUESTION: Just so I am clear. Your 14 investigation concluded when you realized 15 that alleged wrong doing occurred outside 16 of your jurisdiction? 17 ANSWER: Yes. After I spoke to Walter 18 Tagel that's when we ended. 19 Next question. 20 QUESTION: From the date of this you 21 spoke to Walter Tagel on September 4, 2007, 22 then you spoke to Betty Rivera on 23 September 18, 2007? 24 ANSWER: September 4, that is when I 25 spoke with you. I put down that

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49 50

1 3~RGESS-MC COSKER\CROSS EXAMINATION\FORTE 1 BURGESS-MC CO$KER\CROSS £XAMINAT!ON\FOR7E

' .. ~ _... . 2 inforrriation as Walter Tagel, that's where . 2 ... A Yes. 3 he lives and his ID number and when he 3

;i,~'.:.Q. ·ii. :. ;,,,: .'..'.;.::~ ':. ~~.~~~~~d the, :aper. That's wh~~··~·o:u: t~ld ~~,.~ _;:~ ·:~t ;;. ~~:Ji.~~~~n; ::~::()~~:v~e;;~~~~~;.;~~ a~no:.~:h:f this · 6 ···.:·· · · ·· · QU.ESTION: Did you ever present .·; 6 . answer is no it is no~- were yoli ever informed '·

r .~ ~ ~· .;· -· • 7 · .· · · pictures to Ms. Rivera of Stev~n s~rgio or · ·· ··· ·7_ · th~t ,:;,Y client's position was that it wanted a

8. Jannett Sergio? 8 legal right to cross examine Detective Benge; yes 9 ANSWER: No, I did not. 9 or no? 10 QUESTION: To see if they could 10 A Just repeat that? 11 recognize them? 11 Q During the course of this litigation 12 ·ANSWER: No. I was working on the 12 before we went to the hearing before Judge 13 complainants name being forged. 13 Liebowitz; were you ever informed that my client 14 QUESTION: No further questions. 14 took the legal position that it wanted to assert 15 MS. FORTE: lfwe go to the bottom of 15 its right to cross examine Detective Benge 16 paying 41. 16 regarding his investigation? 17 STATEMENT BY MS.STAROPOLI: I object. 17 A I don't even understand what that is. 18 He said he didn't finish the investigation. 18 don't understand what you are asking. 19 The Court speaking, Judge Liebowitz. 19 Q That is fine. 20 THE COURT: To the extent that you 20 Did your attorney ever tell you that 21 completed your investigation; can you 21 Mr. Bauco's attorney, myself, and 22 answer the question? 22 Mr. Gambardella's attorney, myself, wanted

the right to question Detective Benge regarding his investigation?

23 Q Does the record of that testimony in 23 24 March of 2008 refresh your recollection that 24 25 Detective Benge never completed his investigation? 25 A I can't remember.

51

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 Q You testified earlier today that you 3 believe that Mr. Bauco and Mr. Gambardella were 4 acting in a frivolous manner because your counsel 5 provided me with a handwriting report from an 6 expert which claimed that the signature was not 7 yours; correct? 8 A That was one of the reasons. 9 Q Is it your belief that Mr. Bau co and

10 Mr. Gambardella should have accepted that 11 handwriting analysis's report as true without the 12 opportunity to question him? 13 A I'm sorry, can you repeat that. 14 Q It is your belief that my clients, 15 Mr. Bauco and Mr. Gambardella, should have taken 16 that handwriting expert's report as the truth 17 without having the opportunity to question him 18 about what he based his report upon? 19 A Yes. 20 Q If you loaned $75, 000 to a company and 21 the person you loaned it to said, well that is not 22 my signature, and hired an expert, you would not 23 want to speak to that expert? 24 A I would have probably hired my own 25 expert.

52

1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE

2 Q Ms. Mc Cosker, at the last day of 3 hearing there was testimony when Mr. Bauco 4 testified. On cross-examination your attorney 5 asked him about a number of checks that were made 6 payable to 550 Realty Association, FMB Industry; 7 do you recall that line of questioning about those 8 checks? 9 A Somewhat.

10 Q Do you have any personal knowledge as to 11 whether or not those checks bounced? 12 A The only knowledge I have is whatever is 13 in that stack that is in evidence. 14 It is not my bank account. I didn't 15 write any checks. I'd have to look through the 16 papers and go through all of them. 17 Q I am just showing you what has been 18 marked already into evidence as defendant's 19 exhibit A? 20 MS. STAROPOLI: Your Honor, I object 21 to the question because I never asked her 22 questions about checks. There was never a 23 line of questioning. She has Mr. Bauco 24 here. She can ask him about them. 25 MS. FORTE: Your Honor, she is the

. . ... ~ .

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53 54

1 3URGESS-MC COSKER\CROSS EXAMINATION\FORTE 1 BURGESS-MC KOSKER\RED!RECT EXAMINATION\STAROPOLI.

2 owner of the business. If you would like 2 · previous. He said that there was no loan. I 3 me to reserve my questions for Mr. Bauce 3 believe I read it here today. That there was .

·~.~O :·1:,., .. :". :. ·.,,. ~:~e~: ;~~~~:~ :i:~~hda~~uments'.l,~.~~·~.1~·?··'·~,i.<:~~.~ . . 6 . MS. STAROPOLI: She is the owner: of · · .::,_; 6:

nothing to worry about, and he would take care·of them~·.·,'.,.·:.;. . · · .:. :· :- ·· ·, .. · .. ::·, :• '.'·.

.. ·~ 7 the business but she is not on the bank 8 account. 9 MS. FORTE: I will reserve the 10 questions for Mr. Bauce. 11 THE COURT: Fine. 12 MS. FORTE: I have no further 13 questions for this witness. 14 THE COURT: Any redirect, 15 Ms. Staropoli? 16 MS. STAROPOLI: Yes, your Honor. 17 REDIRECT EXAMINATION 18 BY CATHRINE M. STAROPOLI, ESQ.: 19 20 Q Ms. Burgess, Ms. Forte was asking you 21 about your ex husband and these documents. 22 Do you recall what your husband advised 23 you, after you told him or asked him what these 24 papers were for? 25 A I believe I already read it in my

55

1 BURGESS-MC KOSKER\REDIRECT EXAMINATION\STAROPOLI.

2 A Yes. 3 Q Did they not have an opportunity to 4 speak to either party? 5 MS. FORTE: Objection. 6 THE COURT: I think we are going over 7 some testimony that we have had previously. 8 MS. STAROPOLI: Not about the part of 9 Ms. Forte speaking with Detective Benge.

1 O MS. FORTE: My questions were framed 11 to this witness as, didn't we have the 12 right to speak to them. 13 I didn't want to ask her a question 14 that would seek a legal conclusion. But 15 obviously we had the right -- it is our 16 legal position that we had the right to 17 18 19 20 21 22 23 24 25

cross examine these individuals in a Court of law under oath before a Judge.

I don't want to ask that question to the witness as a lay person. I don't want to ask her about our, quote, unquote, right to cross examination.

MS. STAROPOLI: You did ask her that, and she said that she didn't understand and you rephrased the question.

.. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q There was no' loan?· A That is what he had told me. Q You gave him the documents at that

point? A Yeah. Q Also Ms. Forte asked you if you believe

that Mr. Bauco and Mr. Gambardella should take the report of the handwriting expert without questioning, and she asked you if you should take the report of Mr. Benge without questioning; is that correct?

A I believe so, yes. Q After we had given Ms. Forte the report,

you stated earlier that we had asked her to back out; correct?

A Correct. Q And once again after you had given her

in addition to the Police Department, Mr. Breslin's report who is the handwriting expert, you once again gave them that offer?

56

1 BURGESS-MC KOSKER\REDIRECT EXAMINATION\STAROPOLI.

2 MS. FORTE: Correct. 3 MS. STAROPOLI: So I am asking her --4 Q Do you have knowledge as to whether 5 Ms. Forte or anyone from her office ever spoke to 6 Detective Benge? 7 A I know that Detective Benge called 8 there. I don't remember, I am sure that it is 9 somewhere in all these papers, whether or not he

10 spoke to them. 11 Q Are you aware if Denise Forte or anyone 12 in her office was given a number or who they 13 should speak to in the police department --14 THE COURT: How would she know those 15 things? 16 MS. STAROPOLI: Because she does know. 17 18 19 20 21 22 23 24 25

MS. FORTE: Objection as relevance. She is trying to ask this witness whether or not I picked up a phone and called the handwriting expert and picked up a phone and called the detective which is a quantum leap from having these witnesses testify in Court.

The question to this witness is irrelevant

~ .-. . . .....

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®

0 .

57

1 BURGESS-MC KOSKER\REDIRECT EXAMINATIOH\STAROPOLI.

2 MS. STAROPOLI: If the police officer· 3 who is writing the report is saying that 4 the signature was forged and he has the · 5 . , :· ··testimony fr'om a notary, they cquld.:.hav~ i'; · 6 always gone and spoken to th~_police_ ·' 7 officer and asked him. · . 8 THE COURT: What is it that you w;fnt 9 to ask the witness? 10 MS. STAROPOLI: If she is aware of 11 whether or she is aware that we had given' 12 the information of who the detective was 13 that was working on this case? 14 MS. FORTE: Objection as to relevance.

1

2 3 4

6 7 8 9 10 11 12

. 13

14 15 16 17 18 19 20 21 22 23 24 25

And how would this witness know? 15 MS. STAROPOLI: It is relevant because 16

Ms. Forte could have called and asked him. 17 THE COURT: No. I sustain the 18

objection. 19 MS. STAROPOLI: I have no further 20

questions. 21 THE COURT: Ms. Mc Cosker, there came 22

a time when you retained your attorney? 23 THE WITNESS: Yes. 24 THE COURT: And over a period of time 25

59

1 BURGESS-MC KOSKER\REDIRECT EXAMINATION\STAROPOLI. 1 2 liens and everything released. 2 3 THE COURT: Wasn't that taken care of 3 4 long before that? 4 5 THE WITNESS: No. That was the money 5 6 I had to spend to prove that. 6 7 MS. STAROPOLI: Your Honor, if you 7 8 look -- 8 9 THE COURT: No. I am questioning the 9 10 witness. If I need anything from you I 10 11 will ask you. 11 12 MS. STAROPOLI: Yes, your Honor. 12 13 THE WITNESS: The majority of this 13 14 money was all the money that was spent and 14 15 charged to prove that it was fraud, it was 15 16 frivolous, it was not me, it was forgery 16 17 and to get my bank accounts released and 17 18 get the judgment vacated and get it out of 18 19 my name. 19 20 THE COURT: You may step down. 20 21 We will take a short recess. 21 22 (Whereupon, recess was taken.) 22 23 THE COURT: Proceed, counselor. 23 24 MS. FORTE: We would like to call Mr. 24 25 Bauco to the stand. 25

58

BURGESS-MC KOSKER\REDIRF.CT EXAMlNATION\STAROPOLi.

. . you paid $16,000; is that correct? THE WITNESS: Yes. THE COURT: You owe iiriother $45.;000? THE WITNEss:"/y~$.;",:;;' ::'·--;:. ,:, .... :;;:;·,,., ~,'l;'.•i ...... :,.(;

THE ·couRT: Did ahY;ol-i0 ev~r t0J(yoo· ~ .... ~ .. :~ .. what tlie representation of your bill w~s? '·

THE WITNESS: Yes. I get billed every month.

THE COURT: You knew you were incurring this kind of legal expense?

THE WITNESS: I had no choice. They had liens --

THE COURT: You said you had no choice. At one point you were beyond defending the claim against you. The bulk of the legal expenses you incurred had to do with the action you were looking for, damages, as a result of --

THE WITNESS: No. I believe --THE COURT: This $65, 000 that you owe

in legal fees that is a representation of having to do with what?

THE WITNESS: To prove that I had nothing do with this. That I can get these

60

BURGESS-MC KOSKER\REDIRECT EXAMINATION\STAP.OPOLI.

THE COURT: Please raise your right hand.

Do you swear the testimony that you are about to give is the truth, the whole truth, and nothing but the truth?

THE WITNESS: Yes, I do .. THE COURT: Your full name and address

to the Court Reporter. THE WITNESS: Frank M. Bauco,

B-A-U-C-0, 99 Peach Lake Road, Brewster, New York, 10509.

THE COURT: You may proceed. MS. FORTE: Thank you.

DIRECT EXAMINATION BY DENISE A. FORTE, ESQ.:

Q Mr. Bauco, what capacity do you know Richard Burgess?

A A auto repair company. Q What business have you transacted with

Mr. Burgess in the past? A I have lent him money over several

years. Q Did you lend him money in a personal

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1 3AUCO\DIRECT EXAMINATION\FORTE 1 BAUCO\O:RECT EXAM!NAT!O?l\FOR!E

· 2 capacity? .;:· 2 .. Q Do you recognize this document? 3 A Business. 3 A Yes.

>~0. :,:;: ; ,; .. ''.~r .. R~-~~r~P:~~=!~:~e,ly. how~-~~,~~ .~~ars do :,o.~ know : .. -~~ :~a! i~~!:fo(monies ·f leiif tihn' ..

6. , A. .About 12 years.·. 6 ·This is one of my first loans I made to him:·· .. . 7 Q , po yo1;1 know the woman who just testified 7 Q When was that docuinei:it'dated? . 8 today sitting at my far l~ft-- let the record 8

9 9 reflect I am referring to the woman sitting beside 10 attorney Staropoli? 10 11 A Yes. 11

. 12 Q In what capacity do know her? 12 13 14

13 A I know her as Richard Burgess's wife. 14 Q To the best of your recollection how 15 many times have you loaned money to Richard 16 Burgess and/or his businesses?

15 16

17 A Numerous times. Maybe 8,10,12. It has 17 18 19

18 been over 12 years. 19 Q When you loan money, do you charge 20 interest? 20 21 A Yes. 21 22 Q I am showing you a document that has 22 23 been already been marked into evidence as 23 24 plaintiff's exhibit 1? 24 25 A Yes. 25

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

63

BAUCO\DIRECT EXAMINATION\FORTE 1 are names on the documents and signatures 2 over the names. 3

THE COURT: Signatures over the names? 4 THE WITNESS: Yes. 5

Q You testified Mr. Bauco that there is a 6 Richard Burgess -- 7

A And Maura Burgess, and both signed. 8 Q In what capacity did Richard Burgess 9

sign this document? 10 A As president and guarantor. 11 Q What capacity did Maura Burgess sign 12

this document? 13 A As one of the guarantors. 14 Q Why did you seek to have Richard Burgess 15

sign the document? 16 A He was the president of the company and 17

the guarantor. 18 Q Why did you seek to have Maura Burgess 19

sign the document? 20 A As guarantor because that were married. 21 Q Did you ultimately loan the money to 22

Burgess Associates in 1997? 23 A Yes. 24 Q Was that money paid back to you? 25

A October 7, 1997. Q In this particular October 7, 1997

transaction; to whom was the money loaned? A To Burgess Associates, I think. Q If you can recall from independent

recollection; what were the terms of the repayment?

A According to this, there shall be 144 payments each in the sum of $250, for a total of $36, 000.

Q What names are indicated as the individuals who signed this document?

A Richard Burgess and Maura Burgess. Q Do you recall --

THE COURT: Your question; the names that are indicated, the names that appear on the document?

MS. FORTE: Yes, your Honor. There

64

BAUCO\DIRECT EXAMINATION\FORTE

A Yes. Q Do you have other relationships where

you loan money to people? A Yes. Q Do normally ask them to sign documents

evidencing the loan? A Some yes, some no. Q What factors go into making a decision

as to whether or not you will ask them to sign something?

A The people that I know and that I am comfortable with I don't need documents. Some I don't know I want documents, and then after that sometimes I don't require them any longer.

Q Again, questioning the October 7, 1997 document; was that the first time, to best of your recollection, that you loaned money to Richard Burgess?

A Yes. Q In what capacity do you know an entity

by the name of Parkway South Collision, Inc. d/b/a/ S and S Collision?

A They are an auto body shop. Q Was there a period of time when you

·.; .

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65

1 BAUCO\DIRECT EXAHINATION\FORTE

.. 2 loaned money to Parkway South Collision? 3 A Yes. 4 · . . Q How many, if more then one, how many

". ·~. 5 ~ ·-.;: loaps,,dig yoµ make to this company Parkway South

.. 6 . CoHision? . · . 7. · A : ,.There were several.--! don't remember ·8 exactly how many. 9 Q In the aggregate over the several loans

10 that you testified that you don't remember the 11 exact number to; how much money did you loan the 12 company? 13 A Me personally in excess of $75,000. 14 Q Now when you loaned the money to the 15 corporation, who would you deal with? 16 A Richard Burgess. 17 Q Anyone else? 18 A Steven Sergio. 19 Q If you know; who were the legal owners 20 of the corporate entity? 21 A The principals were Richard Burgess's 22 wife Maura and Steven Sergio's wife, Jannett. 23 Q What role, if any, did Richard Burgess 24 Steve Sergio have in the operation of the 25 business?

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

67

BAUCO\DIRECT EXAHINATION\FORTE

never loaned to the companies. He found these checks with the endorsements on the back.

If counsel would like to voir dire on the document I can ask Mr. Bauco what these checks represent.

MS. STAROPOLI: Mr. Sergio did not start with the company until 2006. These were personal loans to Mr. Sergio. Mr. Sergio, was not a principal, and I would be more than happy if I had know that this was going to be presented --

THE COURT: What role do they play? Who is Mr. Sergio?

MS. STAROPOLI: At the time of loan was made he was an owner.

THE COURT: Owner of what? MS. FORTE: He was owner of the

business. The loan that was made from Frank

Bauco and Andrew Gambardella was made to the corporation. Steven Sergio's wife was 50 percent owner of the business like Maura Burgess was 50 precent owner of the

1 2 3 4

. 5: ·6

7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

66

9AUCO\OIRECT EXAHlNATIOU\FCRTE

A The day to day operations. '; · : · .· · · '"

Q When you loaned the company -- when loan specifically Parkway South money, Parkway South Collision; how would'you loari'them money?: :; ·'°··-'~

A Myself in various·wii.ys. Cash, check and in some cases credit card-s. •. · · · · ·· ' · · · ·

Q Mr. Bauco, I am showing ·you a document that I'd like to have marked into· evidence as plaintiffs exhibit 6?

MS. STAROPOLI: You·r Honor, I object They are to Steven Sergio.

MS. FORTE: ·Your Honor, would you like to see a copy of it?

THE COURT: Yes. MS. STAROPOLI: I don't have any idea

what these loans are for. I haven't been provided any copies of these before. I object, your Honor.

MS. FORTE: Your Honor, it is a two sided companyy. You can see the endorsements, and my client combed through his records. This checks were written in 2005 after the close of the last hearing where it became an issue that money was

68

BAUCO\DIRECT EXAHINATION\FORTE

business. But Steven Sergio and Richard Burgess ran the day to day operations of the business.

These are just three of the checks which were written to Steven Sergio, and you will see in the memo form, loan S and S from Mr. Bauco to the business which made up the $75, 000 or part of the $75, 000 that my client lent to the corporation.

MS. STAROPOLI: Your Honor, this promissory note was signed in 2006. Not in 2005. I have an affirmation here from Ms. Forte saying that based upon receiving this document Mr. Bauco lent the money. It is personally signed by Jannett and Steven. Not by S and S. These were personally signed and printed to their only account. Not to the business account.

MS. FORTE: Your Honor, at the hearing which was conducted last March before Judge Liebowitz, Mr. Steven Sergio did testify, and he testified that Frank Bauco -- again, Mr. Steven Sergio ran the day to day business of S and S Parkway South

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69

1 SAUCO\D!RECT EXAMINAT!ON\FOR~E

2:· · Collision ··and it is in this transcript, 3 the money that Frank Bauco, individually,

~· · 4 ·. · · ; ·loaned to the corporation were comprised of . ·~~..::>: !;:57.~·.<::1{ fr;·Joans that tHe made to the business both·

'6'":- ·. before.and after the promissory note was .··. 7 executed. There is sworn testimony.

8 All I am bringing is what has been .. 9 marked for identification as plaintiff

10 exhibit is simply three checks that·· in 11 compliance with Mr. Steven Sergio's 12 testimony under oath last month, that these 13 were loans that were made by Frank Bauco to 14 Steven Sergio for the business, and then 15 the $75, 000 promissory note was executed. 16 If you recall, Judge, Mr. Gambardella 17 wired in $75, 000 upon receipt of the 18 executed promissory note and the executed 19 affidavit of confession of judgment 20 After Mr. Gambardella wired the money 21 to Mr. Bauco to secure his loan interest in 22 the company he also asked for a promissory 23 note to be drafted up. 24 Mr. Bauco did not give the company 25 $75, 000 in April of 2006 when the note was

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

71

BAUCO\DIRECT EXAMINATION\FORTE

business. So this document respectfully is relevant to show that Mr. Bauco had influx of money.

MS. STAROPOLI: Your Honor, the note specifically says that the money was being lent there on April of 2006. Not September. This is by a different company, by a different person, cashed and deposited into Mrs. Sergio's personal account. First of all.

Second of all, Mr. Sergio is not even here.

MS. FORTE: I'm sorry. where are you reading from the note?

MS. STAROPOLI: It says, we are lending you money on this date. Principle amount and the date.

There is an affirmation from Ms. Forte saying that based upon the authenticity of the affidavit and the promissory note the plaintiff loaned the defendant money. It doesn't say before. It doesn't say after. To be used in an auto body repair facility. Not to be used personally by Jannett and

1

2 3

·4

·5

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

19 20 21 22 23 24 25

70

BAUCO\O!RECT EXAMINATION\tO~TE

executed. His $75, 000 spanned'a·period of time before the promissory note was executed when he ldaned the business money. : .. :;\c• Ms. STAROPOlJ::~·< That. is Hot what'the' > \\' ·,:: ,, • : ; •

promisso..Y 'note says-.. THE COURT: Let her finistl: MS. STAROPOLI: I'm sorry·.

MS. FORTE: Mr. Sergio testified, and I will find the exact testimony in this transcript regarding the· fact that Mr. Bauco had made various loans to the company.

Mr. Richard Burgess could have been

subpoenaed to testify if there was a true issue as to whether or not Mr; Bauco loaned the business money. Mr. Bauco is testifying that he loaned the business money.

Ms. Mc Cosker, who at the time was Mrs. Burgess, has no knowledge of the business. She has testified on seven different occasions in affidavit, at the March 2008 hearing, at the hearing today. She knew nothing about the operation of the

BAUCO\DIRECT EXAMINATION\FORTE

Steven Sergio. Also in referring to Mr. Bauco's

affidavit the $75, 000 loaned to the business was made in three parts.

72

First, Mr. Burgess borrowed on behalf of the business the sum of $35,000 which was comprised of miscellaneous loans and credit card bills paid on behalf of Mr. Burgess and the business, not to Mr. Burgess. This was written in 2006, not 2005, your Honor. That only totals $35,000. This was a personal loan to Mr. Burgess.

MS. FORTE: To Mr. Burgess on behalf of the the business.

MS. STAROPOLI: No. It says paid on behalf of Mr. Burgess, and the business not Mr. Burgess for the business. I can read, Ms. Forte. There are personal loans.

I don't know who Elite Development is. I did not have enough time to subpoena the records. Michael Baco signed these checks, not Mr. Bauco. I could have gone into a check registry and taken checks out myself,

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1 SAUCO\D!RECT EXAM!NATION\FORTE

2 . . . Yc:>.ur Honor. 3 THE COURT: All right. Proceed.

0 ·. 4 . · · ... ,.;. MS. FORTE: Mr. Bauco, please look at ,:,:.: . , .. ·-~~~.;.:;: ··§,.:~ •. ,~·I«~;·.JJw .docume.nt that has been marked mto ··,

.6. · evidence as plaintitrs 6? 1. > ... ·MS. STAROPOLI: Your Honor, I am· 8 objecting to this being marked into 9 evidence. 10 THE COURT: No, we will take it. I am 11 asking for an adjournment. I need to 12 subpoena documents. This is ridiculous. 13 am given these the day of the trial. I 14 want to subpoena Elite Development. 15 MS. FORTE: What is the relevance? 16 MS. STAROPOLI: The relevance is that 17 you are saying that this company made a 18 loan. 19 MS. FORTE: Yes. 20 MS. STAROPOLI: I want to see bank 21 records. I want to see the corporate 22 records. I don't know who owns this 23 company. This could be a personal loan 24 from Michael Bauco. It says Mike Bauco on 25 the check.

1

2 3 4 5 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

75

BAUCO\DIRECT EXAMINATION\FORTE

evidence of these loans. MS. STAROPOLI: That she has given to

me on the day of the trial, your Honor. How do I know it was not paid back? I

need their bank statements, your Honor. This was a loan made six month earlier

then the promissory note. I have documentation in contradiction to what this is saying, that he did not lend the money until that time.

Your Honor, this is totally prejudice for you to, first, let this in when it is to Steven Sergio and signed by Jannett Sergio, his wife, into their personal bank accounts.

I have no proof of documentation what this is for. There is no promissory note for this. Nothing. But meantime I am given this today and I'm supposed to take it and not be allowed to ask for any inquires or get any documentation?

THE COURT: You have never seen this before?

MS. STAROPOLI: This is the first time

74

1 BAUCO\DiRECT EXAMINATION\FORTE

2 . I am asking for arfadjournment, your 3 Honor, to prepare subpoenas. 4 ·. . . ~ MS. FORTE: Your Honor, my clients are

.: 5 '·. ~ •i/·:: exlre·meiy prejudice'of:·giving ttie .. ,, .. 1.' ···-~'. ' .. -~·.~· 6. ,. . defendant's counsel an adjournment. 7 .· ., ; ·· The whole crux of this hearing today 8 is an application for attorney fees. I 9 don't want to turn this 'Into a circus. I

10 do not want to increase the attorney fees 11 to over$100,000 so opposing counsel can go 12 on a fishing expedition to try to figure 13 out what is Elite Development. We have 14 Mr. Bauco here. If you would like the 15 Court can question him. I can question 16 him. Opposing counsel has the opportunity 17 to cross examine him as to who the owner of 18 Elite Development Is, and what these checks 19 represents. But there is a consistent 20 pattern that Mr. Bauco has always 21 Indicated, that he had an ongoing 22 relationship with Steven Sergio, Richard 23 Burgess, and that he made loans throughout 24 a span of time to the companympany, Sand S 25 Parkway South Collision. This is the

76

1 BAUCO\OIRECT EXAMINATION\FORTE

2 I have seen this. 3 MS. FORTE: My client brought it to my 4 office on Monday, your Honor. He just went 5 through his records. He had a medical 6 procedure done. 7 THE COURT: I think that it would be 8 inappropriate to use something that just 9 surfaced and that counsel has not had time 10 to review or look into. 11 So counsel's objection to the use of 12 this exhibit is granted. Let's move on. 13 Q Mr. Bauco, you testified that the 14 money -- how was the money loaned to the company? 15 A Like I said before, cash, checks and 16 credit cards. 17 Q If you can isolate a time period where 18 these loans were made to Parkway South Inc.; what 19 is the time frame, Mr. Bauco? 20 A Like I said earlier it was prior during 21 and after the loan. 22 MS. STAROPOLI: Your Honor, I object 23 . to the question. He has clear evidence as 24 to when the documentation --25 THE COURT: No. The question is

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1 BAUCO\DIRECT EXAMINATION\FORTE

, .. , .. .. . .2 ... -~ ~ pr.oper. Overruled. 3 Q Mr. Bauco, I am showing you a document

. · A_ · . _"' .•· .. · 4 . '.'~ha~ h~s. ~e .. en. ~ar.ked for identification as ·~: .. i;~~~ ... :' ,,,. ;~t~. i·? ~·,,~ tl?)311Jt1W~ ~Xhlblt 2}' · ·. .:'. ... , . · ,w•. • • : ... 1

··· · · · ' · · .. 6 : . '1 A ·· Yes .. ~· .. ~. •:.·~•·. ~,.,, "f .•v•' •

.. ~ ..

() .

7 . . . Q Do _you recognize that document? 8 A Yes. 9 Q What is that document?

10 11. 12 13

A It is a promissory notice for $75,000. MS. FORTE: I would move to have this

admitted into evidence? MS. STAROPOLI: I have no objection to

14 that one. 15 (Whereupon, Plaintiff's Exhibit No. 2 is 16 marked in Evidence.) 17 Q Mr. Bauco, starting from the first page, 18 the top of the document; what is the document 19 entitled? 20 A Promissory note. 21 Q What is the date of the document? 22 A April 6, 2006. 23 Q What is the principle amount? 24 A $75, 000. 25 Q Does it say when that $75, 000 was

79

1 BAUCO\DIRECT EXAHINATION\FORTE

2 hearing, Ms.Staropoli asked you about various 3 checks that were written after April 6, 2006. 4 Some of them were paid payable to 550 Realty

5 Association. Are you to the owner of 550 Realty 6 Association? 7 A Yes. 8 Q Ms. Staropoli asked you about a check 9 that was date May 1, 2005 to 550 Realty

10 Association, check number 1318, in the amount of 11 $14, 284. 10; do you recall her questioning you on 12 that? 13 A Yes, I do. 14 Q What did you respond with respect to her 15 allegation that $14, 000 was paid back to you? 16 A I told her that that check was a bounced

17 check. 18 Q Mr. Bauco, I am showing you what has 19 been marked into evidence as defendant's exhibit 20 A. 21 A Yes. 22 Q I would ask you to look at, these are

78

1 BAUCO\DIRECT EXAHINATtON\FORTE

2 ·loaned?· 3 A No .

. . 4 ... ·. q ·, :.Can you r,ead the first paragraph into ·. · · 5,._,r;~J~~ r:ec12x~~ .. ·:::·:;:'.:.~·:1:-- · :. U:\' --':'· <'.;'. ·;:··

6. · ... ,._ A . For v~h!e received Parkway South Inc. 7 . d/b/s. S and S Co!lisi9n with offices· at 4124 8 Boston Post Road, Bronx, New York, 10475 here and 9 after known as the borrower and/or undersigned. 10 Hereby promises to pay to the order of 11 Frank Bauco residing at 99 Peach Lake Road 12 Brewster, New York, 10509, "hereafter referred to 13 holder of the note,".the sum of $75,000 on or 14 before April 30, 2007,due date, the said sum shall 15 be paid in the manner of the following. 16 Q You can stop there. 17 That provision does not reflect when the 18 money was loaned to the corporation correct? 19 A No. 20 Q Is it your testimony that the $75,000 21 was loaned before April 6, 2006? 22 A Part of it. 23 Q And part of it; when? 24 A After. 25 Q Mr. Bauco, at the first date of this

80

1 BAUCO\DIRECT EXAHINATION\FORTE

2 statement closed May 31, 2006. 3 A May 31? 4 Q Yes. 5 A Okay. 6 Q Have you gotten to that portion of the 7 document? 8 A Yes, I believe so. 9 Q On the first page on the bottom it says 10 checking account transaction? 11 A I see that. 12 Q Do see that? 13 A Yes. 14 Q What is the reference made on May 4, 15 2006? 16 A There is a few. Do you want them both? 17 May 4, 2004? 18 Q No, May 4, 2006. This is the bank 19 statement May 31, 2006; correct? 20 A Right, but there is both. 21 Q Please read both of them? 22 A You have a returned check, check number

CD 23 bank statements that were subpoenaed by Commerce 23 1319 for $400. Then another returned check, 1318 ' 24 Bank for months ending 4/30/06, 5/31/06, 6/30/06, 24 for $14, 284. 10.

25 7/31/06. I would draw your attention to the bank 25 Q That was the check you testified bounced

Page 133: Burgess 143 Pages

.,._: ·:

-.~ .... _; "

81 82

BAUCO\DIREC7 EXAMINATION\fORTE 1 SAUCO\DIRECT ~XAHINATION\fORTE

2.. at the last date of the hearing; correct? 2 .. defendant's exhibit A, I would ask you to go to 3 A That's correct. 3 the 7/31/06 bank statement? 4 Q Chee~ number 1319 for $400; do you 4 · .. · .A . :'.Okay .

. : 5/. recall at the last day of the hearing if .: .. ·: :.· · •:;<:d>-:·::·,5.::.:::~·;:. ··.:a·,.:; Gan you!'lgain:io·ak:·at the-bottom of the : · ·· . 6 Ms.Staropoli que~tioned you about that. check?. . 6 page where is says, checking accou11.t transactions? 7 . A . There were several. I think that was : . 7 . .. A .. ,. Yes. 8· the right number. 8 Q ·oo see any entries for July 10, 2006? 9 Q Do you have a -- do you know of business 9 · · A .. Yes. I see two. 10 entitled FMB industry? 10 Q What are they? 11 A Yes. It is mine. 11.,.. A Returned check 1412 for $400. A 12 Q That was who check 1319 was made 12 returned check number 1411 for $4,000. 13 payable to; correct? 13 Q Just staying with those two for a 14 A Correct. 14 minute. If you flip behind the print out there 15 MS. FORTE: Your Honor, my client also 15 are actual photo copies of the check? 16 bought to my office copies of these 16 A Correct. 17 canceled checks but they are in the bank 17 Q Check number 1411, it is on the 18 statements, but if the Court wants to see 18 bottom --19 the actual returned checks I have a copy of 19 A Right-hand side. I see that. 20 them to mark them into evidence. 20 Q Who is that made payable to? 21 MS. STAROPOLI: The bank statements 21 A 550 Realty. 22 are clear for themselves. I have no 22 Q That was a payment that supposed to be 23 objection. 23 made to you? 24 THE COURT: Fine agreed. 24 A Yes. 25 Q Mr. Bauco, also looking through 25 Q That is one of the checks that bounced;

83

1 BAUCO\DIRECT EXAMINATION\FORTE

2 correct? 3 A That is correct. 4 Q I would ask you to look at the top of 5 the following page, check number 1412? 6 A Yes. 7 Q Who is that made payable to? 8 A FMB Industries. 9 Q That was another check that also 10 bounced? 11 A That is correct. 12 Q Was there ever a replacement check sent

13 for check number 1411? 14 A No. 15 Q Was there a replacement check sent for 16 1412? 17 A No. 18 Q Was there a replacement check sent for 19 1318 that you see just testified to in the amount 20 of$14,284.10? 21 A No. 22 Q Was there a replacement check sent for 23 1319 in the amount of $400 to FMB Industries?

24 A No. 25 MS. FORTE: Just one moment, your

84

1 BAUCO\DIRECT EXAMINATION\FORTE

2 Honor? 3 THE COURT: Yes. 4 Q Mr. Bauco, why did you ask for 5 promissory notes to be executed in April of 2006? 6 A Several reasons. One, because the 7 business was not in Rick's name. It was in their 8 wife's name. That was one reason. 9 Another is, I was bringing my cousin in 10 as another part of the loan and I wanted him to 11 feel comfortable and he wanted it on paper work as 12 well. 13 Q Why did you get your cousin, 14 Mr. Gambardella? 15 A We do certain things together. He asked 16 if there was anything that came up that he would 17 like to look at it. I brought that up to him and 18 he got involved. 19 Q Was Mr. Gambardella paid back a penny of 20 the $75, 000 that he wired into the business? 21 A No. 22 Q Out of the promissory note that has been 23 marked into evidence as plaintiffs exhibit 2; how 24 much of that money still remains outstanding to 25 you,Mr.Bauco?

Page 134: Burgess 143 Pages

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.1 BAUCO\DIRECT EXAMINATION\fORTE

:. 2 • , . , : A . All of it 3 Q In April of 2006 when you brought your

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@

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.

·. 6 investment investigating $75, 000 each into a:· ~·

7 . business? 8 A It was good. It was very busy. I'd go. 9 there frequently and they were constantly busy.

10 Q Who drafted the promissory notes and the : 11 confession of judgment? . . 12 A You did. 13 Q Why did my office do that? 14 A Because I asked you to. 15 Q Who paid for the drafting of the 16 promissory notes and the confession of judgment? 17 A Parkway South, Sand Spaid for it. 18 Q Why did the corporation pay for me to 19 draft promissory notes? 20 A It is common in any kind of loan that 21 the borrower pays all legal and closing fees, 22 points, et cetera. 23 Q How much was paid for that? 24 A I believe it was $1, 000 for legal fees. 25 Q Who decided who would be the individuals

87

1 BAUCO\DIRECT EXAMINATION\FORTE

2 A I got them from you. I turned them over 3 to Rick Burgess and Steve. They are to go get 4 them notarized, and it return them to me? 5 Q Did you accompany Rick and Steve when 6 they had these documents signed and notarized? 7 A No. 8 Q When did you get them back; weeks later, 9 months later? 10 A I think a few days later I believe it 11 was. 12 Q During the course of this litigation was

13 there an allegation made by Mrs. Burgess or her 14 attorney that you were involved in procuring the 15 notary? 16 A Yes. 17 Q Were you present at the March 2008 18 hearing before Judge Liebowitz? 19 A Yes. 20 Q Do you recall one of the notaries

21 testifying? 22 A Yes. 23 Q Do you recall her name? 24 A I don't. 25 Q Was a question passed by Ms. Staropoli

1 BAUCO\D!RECT EXAM!NAT!ON\FORTE

,: · 2 . ·,,that signed the promissory notes and the 3 · confession of judgment? 4 · A ldid.

86

:<: . .S .. ;·;;,.;· · Q}: Why'did.yOu wa'rl't' RicharcfBl.frgess'tci·sig'h ': . ·6 '• a promissory note and a affidavit of confession of ' '

· 7 judgment? 8 •· A He was the day to day operations. 9 Q Why did you want Maura Burgess to sign 10 the promissory note and the affidavit of 11 confession of judgment? · 12 A Because she was 50 percent owner of the 13 company. 14 Q Why did you want Steven Sergio note and 15 the affidavit of judgment? 16 A He was part of the day to day 17 operations. 18 Q Why did you want Jannett Sergio to sign? 19 A She was the other 50 percent owner of 20 the company. 21 Q Was there an allegation --22 MS. FORTE: Sorry. withdrawn. 23 Q What was the process by which these 24 promissory notes were signed and notarized? 25 Please explain it to the Court.

88

1 BAUCO\DIRECT EXAMINATION\ FORTE

2 to the notary? 3 A Yes. 4 Q Regarding you? 5 A Regarding I don't know if it was me or 6 if anyone in this Courtroom, if she knew anyone in 7 this courtroom -- one of us came to her office or 8 something to that affect. 9 Q What was the testimony by the notary as 10 to whether or not specifically she recognized you? 11 A She didn't know me. She never 12 recognized me, and never saw me before. 13 Q Did she testify that she recognized 14 anyone in the Courtroom? 15 A I believe she didn't recognize anyone in 16 the Courtroom; correct. 17 Q Did Parkway Collision pay back the 18 promissory note that it owed to you? 19 A No. 20 Q When did they default? 21 A Prior to its due date. 22 Q What were the terms? 23 A It was monthly interest. It was 12 24 months of interest and then a balloon payment. 25 believe, if I am not mistaken, they defaulted on

Page 135: Burgess 143 Pages

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1 BAUCO\r.IRECT EXAH:NAT!ON\FORTE

.... , .. ·2 ·. the 10th month. ·-~ ··

0 . .

© -.

3 Q When they defaulted on the interest only 4 payments; what did you do and what did.· 5, ... · Mr~'·G~rnb:ardel!~ do?' .. ·. · · , · -."' · .,, ,:/. ·; /- · ;.,. 6 · · A I authorized you to put them on notice. 7 Q Do you know what steps my office took? .; 8 A It started off with a letter. 9 Q Who did we send the letter to? 10 A To all parties. 11 Q When the default was not curred; what 12 additional steps did yourself and Mr. Gambardella 13 ask my office to take regarding collection? 14 A To exercise our right according to the 15 note and the confession of judgment. 16 Q Were yourself and Mr. Gambardella 17 successful in obtaining judgments? 18 A Yes. 19 Q After you obtained judgments, what did 20 you direct my office to do? 21 A To freeze accounts. 22 Q Freeze the accounts of whom? 23 A All parties. 24 Q When you say all parties, whom are you 25 talking about?

91

1 BAUCO\DIRECT EXAHINATION\FORTE

2 Q Correct? 3 A Because we wanted to question the 4 handwriting expert. 5 Q How much money at that point 6 collectively between Mr. Gambardella and yourself 7 were owed by the corporation? 8 A Over $150,000. 9 Q At any time during your attempts to 10 enforce the judgment; did you isolate exclusively 11 on Maura Burgess? 12 A No. 13 Q In your opinion, Mr. Bauco, were any of 14 the legal steps that you took regarding the 15 attempted enforcement of these judgments 16 frivolous? 17 A I don't think so. 18 Q Why do you state that?

19 A Because I am out $75, 000. To this day 20 I am still trying to go after the other parties. 21 Q What efforts have you taken with respect 22 to Mr. Sergio? 23 A We are tracking down his where abouts, 24 his employment so we can garnish his wages, his

25 union.

90

1 BAUCO\DlRE~T EXAM!NATiOll\FORTE

2. ·.. A A asked you to freeze the parties of 3 both Burgesses and both Sergios. 4 Q Did we only freeze accounts of Maura ' -· -· -s.;,. Bul'g~ss? ; ~.. · · '.·· · : ,·/:''"·" ·. ·; ,:-. .. <:.~ : · · .. ;_,. ·· 6 A: No. 7 Q Did we only send default letters·fo 8 Maura Burgess? 9 A No. 10 Q At some point in time Mrs. Burgess made 11 application to the Court alleging that her ., .....

12 signature was forged; correct? 13 A Correct. 14 Q Do you recall being present with a copy 15 of a police report from Detective Benge? 16 A I believe I did. 17 Q Did you speak directly to Detective 18 Benge; do you recall? 19 A No. 20 Q Do you recall getting a report from a 21 handwriting expert? 22 A I think you did. Yes. 23 Q Why didn't we drop the proceedings at 24 that point against Mrs. Burgess? 25 A Why didn't we?

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1 BAUCO\DIRECT EXAHINATION\FORTE

2 Q Did you ever authorize my office to take 3 any steps with respect to his -- he is a member of 4 a union; correct? 5 A That is correct. If you recall I 6 authorized you to track down those unions too, to 7 find out where he is working. 8 Q Did we ever procure a garnishment of 9 wages as against Mr. Sergio? 10 A You tried. We haven't to date. 11 Q Do we have an executed document by him 12 permitting us to garnish his wages? 13 A Yes. 14 Q What are we actually waiting for? 15 A To find out where his funds are. 16 Q Did you docket these judgments against 17 anyone's personal residence? 18 A No. 19 Q Did you take any steps to see if the 20 Sergio residence had any equity in it? 21 A Yes. 22 Q What specifically did you do? 23 A We went and checked to see what kind of 24 mortgage they had. He had a first and a second so 25 it didn't make any sense to put another lien

Page 136: Burgess 143 Pages

Q

0 .

® .

93

1 BAUCO\DlRECT EXAMINAT!ON\FOR!E 1

2 . against something that was not there. 2 3 4

MS. FORTE: I have no further question 3 with this·.witness? 4

. · ., 5 ···;-., . · .. · THE COURT: Counselor, cross.? ·. ·'~ .... :/: /5 • ; 6 · MS. STAROPOLI:· Yes, your Honor. 6 · 7 CROSS EXAMINATION 7 8 BY CATHRINE M. STAROPOLI, ESQ.: 8 9 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9 10 11 12

13 14 15 16 17 18 19 20 21 22 23 24 25

Q I am going to show you plaintiffs exhibit 1 again. Could you tell us what interest rate was that you were charging on that loan?

A 17.1 percent. Q Do you know what the cap of the interest

rate was in 1997? A No, I don't. Q If I told the cap was 8.25 would that

sound reasonable? MS. FORTE: Objection. Counsel is

asking this witness to draw a legal conclusion. I don't believe that is accurate anyway.

THE COURT: Where are you going with this?

MS. STAROPOLI: This is an illegal

95

BAUCO\CROSS EXAMINATION\STAROPOLI

MS. STAROPOLI: Your Honor, I'd like this marked in evidence as defendant's C?

THE COURT: Any objection? MS. FORTE: No objection. THE COURT: Mark that as defendant's C

in evidence. (Whereupon, Defendant's Exhibit No. C is

marked in Evidence.) THE COURT: Proceed.

Q Mr. Bauco, I want show you a sur reply affidavit it has your name on it. Do you

recognize this? A Yes. Q If you go to the 4th page; is that your

signature on it? A Yes. Q Was it notarized? A Yes, it was. Q What was the date of the notary? A Looks like the 19th of September,

2007. Q Can you look at paragraph 8, please? A Yes. Q Can you please read that to the Court?

10 11 .

12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 15·

19 20 21 22 23 24 25

BAUCO\CROSS EXAM1NAT!ON\S7A~~?OLI

amount. This usury. This interest rate is double what the going rate was.

94

... ·

I am trying to show that this man is su.pposeci to be in businesi;':pfa'dt!ii:ind dbes> ,:~~~· •·· ·~\­this for a living. The amciurit of in'terest' . was double. I checked it last night; your Honor. A That is on personal business. Did you ·

check business other personal? Q Is this notarized? A No, it is not. Q You said you made several loans from

1997 to the current to Mr. Burgess? A Correct. Q And prior to 2006 loan? A Correct. Q Were any of those in writing? A Other than this one and other than that

one, no. Q Do you have any proof of those loans? A No. Q Did you ever ask Mrs. Burgess to sign

any of those loans? A No.

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BAUCO\CROSS EXAMINATION\STAROPOLI

A $75,000 loaned to the business was made in three parts. First Mrs. Burgess borrowed on behalf of the business the sum of $35,000. This amount comprised of several miscellaneous loans and credit card bills paid on behalf of Mrs. Burgess and the business.

Q Have you provided any copies of those credit card bills?

A I believe we did. Q Continue on. A Next paragraph? Q Yes. A In addition I had charged approximately

$27, 300 worth of supplies on my personal credit card in exhibit A. A copy of the credit card evidencing purchases made of supplies given to Mr. Burgess for use in the business.

Q You provided company of that credit card; correct?

MS. FORTE: Objection to the form of the question.

THE COURT: Sustained. Q Have you provided copies of the credit

card totally $27, 324.98?

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BAUCO\CROSS EXAM!NAT!ON\STAROPOLl

A. I believe we did exceeding that. Q Look at exhibit A?

97

<D , . : .... : ,; .... •.~.: .. /.~: .;: ·.~;;· f O.~.TE:; · Your tionor, I respectfully'

11

6 . objec~ t9 this line of ques~ioning. If 7 : this. pro.ceeding was an inquest for amounts 8 due to Mr. Bauco under the promissory note 9 then they would be completely relevant 10 However, we must always remember that 11 this hearing is for defendant's application 12 arguing a frivolous litigation by the two 13 plaintiffs in trying to enforce a 14 confession of judgment and a primary note. 15 If Mr. Bauco's numbers don't come to 16 the penny --1 mean I really don't see the 17 relevance. I don't want to clutter the 18 record and gray the issues that are before 19 the Court. 20 Mr. Bauco has testified that the that 21 $75, 000 that was memorialized in the 22 April 6, 2006 promissory note is basically 23 a copulation of monies and loans that were 24 made for a certain period of time. 25 I respectfully submit that this entire

1

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BAUCO\CROSS EXAMINATION\STAROPOLI

he is saying today. It is written by his own attorney for an affidavit submitted with his papers.

This is also saying -- why wouldn't

99

you be able to provide credit cards. If he charged them on a credit card bill, why would he not have been able to give them to me. He never once --

THE COURT: What is your point with regard to this?

MS. STAROPOLI: It is all frivolous. There was no loan made by Mr. Bauco. There were no monies lent. By him pursuing this against my client there should have been no reason to. That's to harass.

Your Honor, I have the documentation to prove this. They have not given one iota of proof.

$13,000 in cash, $35, 000 on credit card bills and loans paid but no proof.

MS. FORTE: How is my client supposed to make an offer of proof of cash.

Also, again, I reiterate, the defendant could have subpoenaed Richard

1

2· 3 4 5i1.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

98

BAUCO\CROSS EXAMINAT:ON\S?AROFO!.!

line of questioning as to these credit ,;·· ;·,

cards and this exhibit and which credit cards, and your Honor did not admit the

,. ......

. CheCks for that reason~· ·--=·:f~~~~-; ~::~~~-~.~ ... ~ ·. #._ ,! ~· .• . ·t : ··-:.':.i;. !

MS. STAROPOLI: .· Y:ouHfc>"nor, this mah.;. is saying that he made a· loan. There ·is no iota of proof of this except one credit statement which was paid back with a $20, 000 check. There was no loan.

Mrs. Burgess had been trying'to tell you from day one that there was no loan.

THE COURT: That there was no loan? MS. STAROPOLI: There was no loan from

Mr. Bauco. Mr. Bauco did not make a loan. I have been told that several times.

We asked for proof of the loan. Now all of a sudden, today, after two years they come up with checks, your Honor. That proves absolutely nothing.

I have evidence here, if you let me continue with my questioning, that says that he didn't loan the money until it was proven that those promissory notes were authentic. Totally contradicting with what

100

BAUCO\CROSS EXAMINATION\STAROPOLI

Burgess. MS. STAROPOLI: He left the State. MS. FORTE: He is the father of Ms. Mc

Cosker's children. MS. STAROPOLI: And he left the State. MS. FORTE: You can subpoena someone

outside of New York State. All I am saying is that they could

have called witnesses if they truly believed that Mr. Bauco never loaned this money and never had any business relationship with Parkway South Collision. They could have had Steven Sergio testify. Actually Steven Sergio did testify and testified that he did loan the money. He was the other --

MS. STAROPOLI: To him. MS. FORTE: No. MS. STAROPOLI: She is testifying for

someone.

MS. FORTE: Your Honor, I would ask that the entire transcript from the March 3, 2008 hearing before Judge Liebowitz on the issue of forgery be

Page 138: Burgess 143 Pages

1

2 3

101

BAUCO\CROSS EXAMINAT!ON\STAROFOLl

.... admitted into this record because there is sworn testimony by Steven Sergio in here

, ,Q,,~· :•:·~~t-:,\ . ;~;;~.~hda~-~9~~:~:t~~:~ ~~~ht~:.b~;:~::::.!~:tda~. . 6 · ,. ·Mr. Bauco did indeed loan the company

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.. ., ..

8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1

2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

.. · . '.,•'' . .

: ... ,mon~y,. I did not think that this was going be

another issue at this hearing when the witness has already testified at a previous hearing a year ago that Mr. Bauco loaned money to the corporation.

MS. STAROPOLI: Is also a witness who told her that she had nothing to do with it, and then tried to sign the promissory note to her saying that he knows that she had nothing do with it. If you would like me to get that document in?

Mr. Sergio left the state. You can't get in touch with him. We tried.

Mr. Burgess in front of Judge Horowitz has refused on the record to give his address of where he is located. My client can't even serve him for child support that he owes. I cannot subpoena

103

BAUCO\CROSS EXAMINATION\STAROPOLI

object -- as to for. MS. FORTE: On page 54. THE COURT: One at a time. You can't

interrupt each other. MS. FORTE: On page 54 of this

transcript is the direct testimony from Steven Sergio and there is a line of questioning as to whether or not Mr. Bauco loaned money to the business.

MS. STAROPOLI: Your Honor, it had nothing to do with the issues. I didn't pursue it; correct?

MS. FORTE: Correct. MS. STAROPOLI: It had nothing to do

with the issue. The issue had to do with whether or not it was forgery. That was the sole issue.

MS. FORTE: There was extensive testimony on this date regarding monies that were loaned by Mr. Bauco and monies that were loaned by Andrew Gambardella.

The issue as framed by the Judge was whether it was forged. There is direct questions by Ms.Staropoli.

1

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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102

BAUCO\CROSS EXAM:NATION\STAROPOL:

two people where I don't even'.tiav·e an;·;,·· address for them when a Judge says you don't need to give ttiem your address. ·

/' ' I·.:#\ ; .. ,,. •. , -t ' ••" .~. • ' '" '· · ._,~ .

. ·· J..do.h~ve docume.ritatlon from' •· <• .. '1· ·

Mr. Sergio saying th~t lllirs. Burge:s~ has nothing to do w_ith thi.s and that he feels responsible for this. I have documentation solely from Mr. Bauco and his attorney that shows -- I mean he is saying he gave $35,000 loans and credit' card bills and can't even give a credit card statement.

I have asked for them repeatedly for 2 years. There is no answer, your Honor.

He gives me one credit card bill for $27,000, and then says I paid $13, 000 worth of cash. I can show you on and on where this contradictory all in these affidavits to what he says.

MS. FORTE: Your Honor, may I have a ruling on my application to admit the transcript from March 3, 2008 before the Honorable Judge Liebowitz. That was a framed issue as to forgery a year ago.

MS. STAROPOLI: Your Honor, I

104

BAUCO\CROSS EXAMINATION\STAROPOLI

MS. STAROPOLI: What page again? MS. FORTE: Page 54. MS. STAROPOLI: There has been no

ruling with regard to that. I don't think that it is appropriate now that I have to bring in Mr. Sergio and ask if he wants to testify and try to find him.

MS. FORTE: Why would you have to bring in Mr. Sergio?

MS. STAROPOLI: He lied on the stand. MS. FORTE: The question by Ms.

Staropoli is --MS. STAROPOLI: I object. MS. FORTE: Judge, may we have a

ruling on this transcript. THE COURT: You made an offer of that

entire transcript? MS. FORTE: If you'd like I could

limit my offer to pages --THE COURT: I gather we have a little

bit more to go. So if you don't finish before lunch we will come back.

MS. FORTE: Your Honor, if Ms. Staropoli has a couple questions on the

Page 139: Burgess 143 Pages

105

1 BAUCO\CROSS EXAMI•ATION\STAROPOLI 1

, ,. 2 ... , .. ~ffi~avit I-would rather go through it and 2 3 modify my request and only introduced pages 3

,.-: · .. Q. ;,,'. .~ ;:;; .. _,·(>~::,. :::::~:~f d,~~~~~:~st:~::~;~~;~~~- ~::!i~~~~a:~g · ·, 4 5.

. ~ . . . . ,_, -. _6~ : ~-, -!oari~ .t~~t were made by Mr. Bau co to the . '. ; -...... , -.!. . _ J~~mp~_ny_~

6 7

8 . MS. STAROPOLI: I object, your Honor. 8 9. . . Pursuant to Judge Lefkowitz was solely 9 10 whether or not the items were forged. 10 11 . , MS. FORTE: This are 10 pages. 11 12 THE COURT: There is an issue with 12 13 testimony under oath but that has been --1 13 14 tell you that this has been a bit 14 15 disjointed. 15 16 I am inclined to ask each of you to 16 17 very briefly submit a memo, brief, having 17 18 to do with your urging why your client 18 19 should recover, and you on the other hand 19 20 take the opposite position. 20 21 MS. FORTE: Correct, your Honor. 21 22 THE COURT: And in your meno if you 22 23 wish to quote from something you can. You 23 24 can do the same. Do not expand the memo 24 25 unduly. 25

107

1 BAUCO\CROSS EXAMINATION\STAROPOLI 1 2 THE COURT: Proceed. 2 3 Q You testified earlier that you have 3 4 given $13,000 in cash; correct? 4 5 A Yes. 5 6 Q I am going to show you another document? 6 7 THE COURT: Let's go off the record. 7 8 (Whereupon, a discussion was held 8 9 off the record.) 9 10 MS. STAROPOLI: Please mark this as 10 11 defendant's D in evidence. 11 12 THE COURT: Any objection? 12 13 MS. FORTE: Your Honor just to be 13 14 consistent, these were the affidavits that 14 15 were submitted with respect to the framed 15 16 issue of whether the signature was forged. 16 17 So I would say that with respect to your 17 18 ruling on the transcript we should have the 18 19 same ruling as it relates to Ms. 19 20 Staropoli's application, that they can be 20 21 referenced. 21 22 MS. STAROPOLI: Your Honor, she bought 22 23 in the fact about the notary and when he 23 24 received the papers back, and also the fact 24 25 as when the loans were made. 25

·-

106

3AUCO\CROSS ~XAMINAT!ON\57AROFOLI

MS. FORTE:· l'understarfd;your Honor.: · ,. As long as the Court permits me to address it ir:t .a post hearing submission, I have no

~· p~blemwitn,ttiat._..t,,,.~ ;::~;!'.~<-.:~.-;:;. . · .· .. ,_ · ... ·.,: . . <: ; ••• ·r.> : . . Ms. STAROPOLI: ·· Yo'u"fHonor, then we ·

don't need to do closing arguments . I'll waive any' clOsing a'rg'uinents' and

just it to the papers. I believe" Ms. Forte said she would as well.

THE COURT: We willsttip here. You will submit.

MS. STAROPOLI: I have few more questions for the defendant.

THE COURT: If you have a few more questions then you can proceed.

But as far as the time you can have a couple of weeks.

MS. FORTE: Can we do until the middle of August. August 14?

MS. STAROPOLI: August 14. it is a Friday.

THE COURT: August 14. MS. STAROPOLI: I have two or three

more questions, your Honor?

108

BAUCO\CROSS EXAMINATION\STAROPOLI

These are statements from both parties advising the Court of when the loans were made, and when the document was returned. That is what I am bringing it in for. Not whether or not the loan was actually made but more when the loan was made contradicting what they said before as well as when the notarized documents were sent back. Thats what this is for. It is his own testimony.

MS. FORTE: If she is marking it for evidence and going to question the witness about it I have no objection to that but I would reserve my position on if she is making an application to admit it into evidence.

MS. STAROPOLI: Your Honor, like I said, these are sworn statements and affidavits signed by him with his testimony about certain specific items.

MS. FORTE: She can question him on it. I don't have a problem with that.

MS. STAROPOLI: I'd like them marked into evidence.

Page 140: Burgess 143 Pages

109

9AUCO\CROSS EXAMINATION\STAROPOLI

::::- THE COURT: I will consider all 3 aspects.

:~'· :4 .... . Q: Mr. Bauco, lamgivingyouthat :-.::~:·,,:~~,,. ':~_5··. 'document.· That does fook familiar to you?

:: ..... ~·.:.·: ;> :· J)'..: ··._,:.A.: Yes, . . , 7-..· : :"· THE COURT: For our purposes we will

8 · ·· m·ark it into evidence as Defendant D in . ' · · ·9 . evidence.

10 (Whereupon, Defendant's Exhibit No.Dis 11 marked in Evidence.) 12 MS. FORTE: Defendant C is just the 13 sur reply of Frank Bauco; correct? 14 MS. STAROPOLI: Yes. 15 MS. FORTE: And defendanfs Dis two 16 documents or three documents? 17 MS. STAROPOLI: The whole packet. 18 MS. FORTE: Can you identify it for 19 the record? 20 MS. STAROPOLI: It is an affidavit of 21 Frank Bauco dated August 13 of 2007. It is 22 also an affirmation of Denise Forte dated 23 August 13 of 2007. 24 Q If you can go to page 4, I believe. 25 A Yes . •

111

1 BAUCO\CROSS EXAMINATION\STAROPOLI

2 THE COURT: Sustained. 3 Q Based on your affidavit, when were the 4 promissory notes returned to you? 5 MS. FORTE: Objection to the form of 6 the question. 7 THE COURT: Based upon? 8 MS. STAROPOLI: His affidavit His 9 statement.

10 THE COURT: Just ask the question. 11 Q When was the promissory note returned to 12 you? 13 A After they got them signed. Days after. 14 Several days after. I don't remember exactly. I 15 know there was two different times.

16 MS. STAROPOLI: In paragraph 5 of your

17 affidavit what date did you say the papers 18 were returned? 19 MS. FORTE: Objection to the form of 20 the question.

21 THE COURT: I allow that. 22 MS. FORTE: It is not the right 23 paragraph, your Honor. 24 THE COURT: Paragraph 8. Sorry. © , .

25 A It says on or about April 10. It could

1 2

3AUCO\CROSS EXAMINATION\STAROPO~!

Q That is your signature?.

110

\''"•

3 A Yes, it is. 4. ,Q._ _Can you .refer tQ ·paragraph number 8?

. 5,~;-,::. ·:· ::A.'.:;:.-a.?·:~- ·;·-. :<~•''~ ~~:•:"· · .,.,_ :":;•:.J.·,',;;., • -:· ·>_;i:-·

6 . Q. · Y!iis; pl.ease, of your affidavit? . 7"-..· A Yes. .; 8 Q Tell us what it says please? 9 A On or bought April 10, 2006 a promissory 1 O note and affidavit of service were returned to me 11 and executed and notarized. 12 Q Now I am going to show you a promissory 13 note which is plaintiffs exhibit 2. Can you 14 please tell me the date the documents were 15 notarized? 16 A The April 18 -- the one, notary? 17 Q Yes? 18 A September. 19 Q The date of the notary not the notary's 20 date. 21 A 18th of April 2006. 22 Q That was after the papers were given 23 back to you based upon our affidavit? 24 MS. FORTE: Objection as to the fo·rm 25 of the question.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

112

BAUCO\CROSS EXAMINATION\STAROPOLI

have been after several days. We didn't have an exact date.

Q I want to show you what is marked as defendant's exhibit D. Have you seen this before?

A Yes. Q Can you go to paragraph 5? A Yes. Q Can you read to the Court what it says?

MS. FORTE: Objection. She is asking this witness to read from my attorney affirmation.

MS. STAROPOLI: Which is submitted from his papers in reply. It is his attorney?

THE COURT: I am going to allow it. Let's wrap this up here. A Upon reliance of the affidavit and the

promissory note the plaintiff Bauco loaned the defendants including defendant Burgess the sum of $75, 000 to be used in an auto body repair facility known as Parkway South Inc. d/b/a S and S Collision.

Q A

Is that statement correct? Yes.

Page 141: Burgess 143 Pages

113 114

1 SAUCO\CROSS EXAMINATION\STAROPOLI 1 BAUCO\CROSS EXAMlNAT%0N\STAROPOLl

-. .. ·. 2 ·.• .. '· · Q After you had gotten proof that the 2 . acknowledged it. She never signed· a notary. 3 promissory notes were legitimate you lent them the 3 for it. Then he is trying to make her

·,.'.-... 0. · ... ,, ·.45 · .. · .. ',,. moneAy? Before and after. .·.:, .• ·, ,·'..', ·.·.45._ ... :,;_:.'.··· .· . responsible for it after. IQ _ . .fr.··<,;,.:: This documentsays:here:that he lent ,: ;· 6: ; · Q That is not what I asked you. 6 · .. the money after he had gotten proof ahd .. 7 Based upon that statement, is that what · . 7 - authenticity of Mrs. Burgess's signature.on

@ ' . .

() -. .

8 · that says? 8 · a document. Then he lent the money. That · 9.. .. MS. FORTE: Objection. Counsel asked 9 is what that says. 1 O him that is that statement is correct. 10 MS. FORTE: Your Honor, can I be 11 MS. STAROPOLI: Then I said, a and he 11 heard? 12 13-14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

said no, before and after. He didn't say yes or no. He said before and after. I asked him if that is what that says.

MS. FORTE: Your Honor, I have to object on this line of questioning.

THE COURT: I will sustain the objection. You can't do that.

MS. STAROPOLI: Your Honor, it is a statement being paid that the monies were after they got the notary. After they got it he lent the $75, 000. He is saying no it was lent in different time spans. If it is lent in different time spans my client had no knowledge of it. She never

BAUCO\CROSS EXAMINATION\STAROPOLI

115

MS. FORTE: It is my legal statement MS. STAROPOLI: I have my--MS. FORTE: It is my legal statement.

It is not Mr. Bauco's legal statement. If she wants to address any inconsistency I will respectfully submit she can do so in her brief. To ask Mr. Bauce about statements that are contained in my attorney affirmation is completely irrelevant

MS. STAROPOLI: I have every one of my clients review my -- they know the story. I don't know the story.

THE COURT: Let's not get in to procedure.

MS. STAROPOLI: That is attached to his affidavit They are part and parcel of a packet that was given to the Court. It was with it. He could have corrected it at any time.

THE COURT: What is you question of the witness?

MS. STAROPOLI: I asked if the statement was correct. Had he lent the

12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

First this is not my client's signed statement. This is my attorney affirmation that she is now questioning Mr. Bauco on. She is asking Mr. Bauco to read one isolated paragraph, specifically paragraph 5. Paragraph 6 says that the total amount of $75, 000 was borrowed in increments.

So I don't see --MS. STAROPOLI: It could be increments

after. THE COURT: This is counsel's

affirmation? MS. FORTE: Yes, your Honor. MS. STAROPOLI: It is in reply.

BAUCO\CROSS EXAMINATION\STAROPOLI

money after he received the promissory note?

116

MS. FORTE: Mr. Bauco responded. THE COURT: Answer that question.

A Yes, I lent them money before and after. MS. STAROPOLI: That is not what I

asked though. Q Do you have any proof of the loan that

you made before? A With your objections to those checks

some of them are, yes. Q What about the credit card? Where are

the credit cards receipts? A They are in --Q No that is not a full complete. That is

only $27,000. MS. FORTE: Objection. She is

badgering the witness. The witness is answering what he believes makes up the evidence for the monies that are loaned. Q I am showing you exhibit C that is the

credit card evidence you provided? A Yes. Q What is the total if you add up the two

Page 142: Burgess 143 Pages

117

1. BAUCO\CROSS EXAMINAT!ON\STAROPDL!

2' • numbers that· were handwritten by you; • 3 approximately?

.:.@~;_, .. ,,: .· '..';~,i· ... ~~:·t~~~ha::r~~~~~:~nforthe .. :·;;,,,,, .. ,;>:".,·':':

• @ .

.

0 . . '

6 · $27, 000 on credit card debts; correct? 7 A·. Yes .. 8 Q And you said based upon your affidavit 9 there are additional $35,000 in loans to 10 Mr. Burgess paid on his behalf and the business as 11 well as credit cards? 12 A Correct. 13 Q Where are those credit card receipts? 14 A Repeat that again? 15 Q Where are --16 A Back up. 17 Q In the previous paragraph you stated 18 that in addition to the $27,000 that you put on 19 that credit card, that there were additional 20 monies in the sum of approximately $35,000 paid on 21 loans --22 A The $35, 000 was not on credit cards. 23 Q That is what your affidavit says. That 24 is why I am asking you? 25 A A total of $35, 000 you are saying?

1 2 3 4 5 6 7 8 9 10 11

12 13 14 15 16

17 18 19 20

21 22 23 24 25

119

BAUCO\CROSS EY.AHINATION\STAROPOLI

approximately $27, 324.98. So it says in addition to the previous

$35,000. MS. FORTE: And the $35,000 was loaned

and miscellaneous credit cards. MS. STAROPOLI: Please don't testify.

It says here, this amount is compromised of several miscellaneous loans and credit cards bills. Can you please explain. A $75, 000 was lent cash, credit cards and

checks. Q A

cash. Q A Q

And $27,000 --Is credit cards. The rest is checks and

Where are the checks and cash? I just gave you three. No you didn't, that is not what the

statement says. A I am telling you.

THE COURT: Enough. MS. STAROPOLI: I am asking --THE WITNESS: And I am giving you the

answer. THE COURT: Enough.

1.18

1 BAUCO\CROSS EXAM!NATIOR\STAROPO~:

2 ·' Q :Yes. . , 3 A I thought you said an additional? 4 .. · y; . Q Addition.al. It does say additional. 5 .. •:, : .. ~ · .·A::.~;~$9. you are s~y!.r.ig th.at J saii;L.$15, 000 6 • Jn. credit ca.rds? . ·, . · · ·. . . · · ·

7 , . . . Q ,. ~o, I am saying paragrapll 8 says 8 $35, 000 ·--9 MS. STAROPOLI: He is trying to 10 confuse the Court. 11 ._. A You are confusing me. 12 Q You read the paragraph, not me. 13 Mr. Burgess borrowed on behalf of the 14 business the sum of $35, 000. This amount is 15 comprised of several miscellaneous loans and 16 credit card bills paid on behalf of Mr. Burgess 17 and the business? 18 A Right.

19 Q Where is the proof of the credit cards? 20 MS. FORTE: Objection to the form of 21 the question. He did not say there was an 22 additional $35, 000.

23 MS. STAROPOLI: Let me read on the 24 next paragraph. 25 In addition I have charged

1 2 3 4

5 6 7 8 9

10 11 12

13 14 15 16 17 18 19 20 21 22 23 24 25

120

BAUCO\CROSS EXAHINATION\STAROPOLI

MS. STAROPOLI: Your Honor, I am asking what the statement means.

THE COURT: You asked three times. Enough.

MS. STAROPOLI: Your Honor, I need a clarification here. Q The $35,00 mentioned in this part did

not consist solely of credit cards? A No. Q So the $35, 000 was checks?

MS. FORTE: Objection to the form of the question.

MS. STAROPOLI: But you -­MS. FORTE: Let me finish my

objection. The sentence is very simple. If

Ms. Staropoli is truly confused, then we are all in a lot of trouble. If she is not truly confused over the sentences then she is badgering the witness.

MS. STAROPOLI: I am not truly confused over the sentence. You are trying along with your client to confuse the Court because it clearly says here, that

Page 143: Burgess 143 Pages

121 122

1 BAUCO\CROSS EXAMINAT!09\STAROPOLl 1 SAUCO\CROSS EXAX!?:AT:ON\STAROPO~!

2 .·. ·• ··. · Mr. Burgess borrowed on behalf of the ,.. 3 business the sum of $35, 000 which was

. 2·-

3 4 ,.

10 talks about an 13. Yoµ don't have to be

a mathematician to 35, 25 and --MS. STAROPOLI: But 1--

,•;, €), , . ; .. :'.-.:;>· :. ~" .~;~~~["o~i=~~~!t~=:~~~~~~~~~~;end~ ~~d ;: ,

6 .· cards; correct? That is what your document•·

5'~ ·:'.)i'·' . ''THE COURT:· We .. will nothave any mor~~::, "'·' :···; discussions or questipr:is on that item.

..

7 · says. Please don't look at your attorney , .

8 for the answer. 9 MS. FORTE: He is staring straight at ·

10 you. 11 MS. STAROPOLI: No. He looked at you 12 Denise. Don't answer. 13 A I am going to say it again. $75,000, 14 cash, credit cards and checks. I can't say it any

15 plainer. 16 Q I am asking about your statement that 17 you swore in this affidavit that you gave $35, 000 18 in credit cards and check or loans, and then

19 another $27, 000? 20 MS. FORTE: Your Honor, I object to 21 the form of the question. If this document 22 is in evidence, over my objection, is in 23 evidence, paragraph 8 references $75, 000. 24 Then $35, 000 for loans and credit cards. 25 Then 9 talks about an additional $27, then

123

BAUCO\CROSS EXAMINATION\STAROPOLI

6 : ....

7: 8 ...

MS. STAROPOLI: 1;3ut your Honor, I still don't know what happened to those

9 · · other credit cards? 10 THE COURT: He answered the question. 11 If you are not happy with his answer that's

12 it. 13 Q Do you have any proof of the $35, 000

14 loan that you made? 15 A Yes. But you won't accept it. 16 Q Yes are no? 17 A Yes. 18 Q Have you provided it to the Court?

19 A Today. 20 Q So the answer is no then? Have you 21 provided it to the Court at any time prior to

22 ·today? 23 A Prior to today? 24 THE COURT: We are finished.

25 You may step down.

124

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

August 14, submit what you wish. I 2 The foregoing is a record of the above will make a determination. 3

MS. FORTE: Thank you, Judge. 4 MS. STAROPOLI: Thank you, your Honor. 5

CERTIFICATION

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

matter on this~5th ay of July, 2009.

\ &r1/)ld...... --- -------------NET PENNA

SENIOR COURT REPORTER


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