Burgess 143 Pages

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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FRANK BAUCO,
Plaintiff, Index Number: 9199/07
-against-
MAURA BURGESS, RICHARD BURGESS,
JEANETTE SERGIO and STEPHEN SERGIO

Defendants.
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AUG 1 4 2009
CHbEF CLEA"K
WESTCHESTER SUPPfEU.!
AND COUNTY COURTS
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ANDREW GAMBARDELLA,
Plaintiff, Index Number: 9198/07
-against-
Defendants.
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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
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( ).
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
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
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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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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 $75,000.00; 2] because the plaintiffs' wished to
exercise their right to cross-examine a Detective who expressed his belief that Ms. Burgess'
signature was forged and 3] because the plaintiffs' wished to exercise their right to cross-examine a
handwriting expert who provided a report that the signature of Maura Burgess was forged.
Thereafter, the defendant's arguments verge on non-sensical conspiracy theories. Without any basis
in fact, Ms. Burgess testified that the plaintiffs singled her out in their enforcement efforts. I will
address each of these allegations in order.
As an initial matter, Mr. Frank Bauco provided credible, and most importantly, undisputed
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evidence that he has loaned money to the business of Parkway South Collision Inc. d/b/a S&S
Collision, both before and after the promissory notes were executed. Mr. Bauco produced
documentary evidence of prior loans to Mr. Richard Burgess from as far back as 1997. Mr. Bauco
produced documentary evidence of credit card charges, which were charged on his personal
American Express Card for the business of Parkway South Collision Inc. d/b/a S&S Collision in
excess of$ 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?
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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.
Q. After you signed that did Parkway South receive any money from Mr. Bauco?
A. I believe that Rick used the credit card.
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 $75,000.00 I know Mr. Bauco had dealings with
Rick. I know he had dealings with Rick.
Attached hereto as Exhibit "A" are pages 54 through and including 58 of the transcript from
the March 3, 2008 hearing before Judge Liebowitz. Also the court should take note that all of the
above-referenced testimony was elicited by Attorney Staropoli on direct examination. It is
preposterous that the defendant now argue that the loans by Frank Bauco were never made, when
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their own witness gave sworn testimony to the contrary.
Also counsel for the defendant made much to do about nothing regarding several checks
which were cut from the business account of Parkway South Collision Inc. d/b/a S&S Collision.
However, as the undisputed documentary evidence revealed, much to opposing counsel's chagrin,
many of the checks bounced. Specifically, check number 1318 in the amount of$ 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 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;
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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.
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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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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 (4
1
h Dept 1992)
fu !&Yy the Court gave several examples of conduct warranting sanctions. Some of the
examples are:
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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 (Martin-
Trigona 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.
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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
EXHIBIT ''A''
NEW YORK STATE SUPREME COURT
COUNTY OF WESTCHESTER : PART RBL
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ANDREW GAMBARDELLA,
Plaintiff,
-against-
MAURA BURGESS, RICHARD BURGESS, JEANETTE
SERGIO and STEPHEN SERGIO,
Defendants.
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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
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?
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,
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. STAROPOLI: With regard to money.
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.: ...
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?
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
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.
' I I I'
r:
1
1eo
bUPREME coURT OF THE STATE OF NEW .
______ :_ ______________________________________________________ s.;t?x 1 6 2009,
FRANK BA UCO,
Plaintiff,
-against-
Defendants.
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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 personal knowledge of the statements made herein, e:xcept where those
are 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

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'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 for t4e full amount of the loan ..
6. These affidavits of confession of judgment were to be a 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
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 was notarized.
10. WJ:l,en I received the documents, the documents were 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 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 appear before him.
..
13. My attorney has advised me that they have made attempts to locate Mr. Tagle and has
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 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.
.. As a principal in the 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 loaned to the business including the total sum of Seventy Five
($75,000.00) infusion of money into the business of Parkway South
17. There is no that the monies were :used in business of Parkway South
Collision.
18. I had been receiving monthiypayments from the business to 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
' 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 not execute the documents other than her statement. in the
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 grounds that would
re9-uire the Court to vacate judgment.
4
1: ) J

FRANK BAUCO,
Plaintiff,
-against-
Defendants.
------------------------------------------------------------------:x
lridex Number: 9199/07
AFFIRMATION IN
OPPOSITION TO
APPLICATION TO VACATE
JUDGMENT BY 'CONFESSION
.. DENISE FORTE, an duly licensed to practice law before the Courts of 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 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 ''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 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 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
" '
'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, 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 business. The remainhig amount was given to the 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
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
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 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, 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 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
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
' 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 the_business of Parkway South Collision without the .
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 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 no
0
te was obtained by fraud should have been asserted in a plenary action thereby
: permitting the evaluation of the.merits of the See Engster v. Passonno, 202 .2d 769
I I .
(3rd Dept. 1994); see also Mittman v. Mittman, 33 A.D.2d 573, 305N.Y.S.2d519; Scheckterv. Ryan,
' .
161A.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 without merit or evidentiary proof.
. .
28. Specifically, it is noteworthy that BURGESS has failed to submit any clear, positive
or evidence of any fraud, misconduct or other that would require the
4
. ' . ..
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 that a judgment by-.confession may be entered 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 become due."
32. It has been held .that a concise statement of the facts, made under oath is so
. that any third party may investigate the matter and ascertaip whether the .confession of
judgment was and bona fide. The affidavit 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 to the defendants, the date the
loan was made and the interest rate on the loan.
5
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 by confession obtained by the plaintiff as there no valid grounds that
would require the Court to vacate the judgment.

Denise Forte
Duly affirmed on August 13, 2007
a- ' .,
-
'
.. ..
6
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
JUDGMENT BY CONFESSION upon:
:
Maura Burgess
40 Wickford Road
New Rochelle, New York 10801
and by m Federal Express Priority 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
.. . -.
.. _:- --.
EXHIBIT A
....
----------------------------------------x
- ANDREW GAMBARDELLA, Index No. 9198/2007
Plaintiff,
- against -
Hon. Matthew F. Coppolla
Hearing Officer
MAURA BURGESS, RICHARD BURGESS, JEANETTE.
SERGIO, and STEPHEN SERGIO,
Defendants.


...
FRANK BAUCO,
Index No. 9199/2007
Plaintiff,
- against -
Hon. Matthew F. Coppola
Judicial Hearing Officer
Defendants.
----------------------------------------x
Closing Statement and Post Trial Memorandum of Law of
Defendant Maura Burgess
HYMAN & GILBERT
1843 PALMER AVENUE
LARCHMONT, N.Y. 10538
I ..
'
"'
------------------------------------------------------------------------)(
ANDREW GAMBARDELLA,
Plaintiff,
-against-
Defendants.
------------------------------------------------------------------------)(
------------------------------------------------------------------------)(
FRANK BAUCO,
Plaintiff,
-against-
Defendants.
------------------------------------------------------------------------)(
Index No. 9198/2007
Index No. 9199/2007
CLOSING STATEMENT AND POST TRIAL MEMORANDUM OF LAW
OF DEFENDANT MAURA BURGESS
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

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
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
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
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
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
.._
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

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
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
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.
11
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
12
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
13
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
15
$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
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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
17
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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
(2d Dept. 1993); 150 Beach 120
1
h Street, Inc. v. Washington Brooklyn Ltd. Partnership, 833
NYS.2d 667 (2d 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
18
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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
19
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
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and Mr. Bauco are astute businessmen who were aware that Ms. Burgess had nothing to do with
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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
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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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-
-------------------------------------------------------------------------)(
FRANK BAUCO,
Plaintiff,
- against -
JEANETTE SERGIO and STEPHEN SERGIO,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - )
-------------------------------------------------------------------------)(
ANDREW GAMBARDELLA,
Plaintiff,
- against -
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.
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
2
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 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
2

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OF NEW YORK
ANDR-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

':fb"so1
B E F 0 R E:
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
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A P P EA RA N C E S:
AN GBER};, ESQS.
nev-for efimuanf
1-'a"lm r ve e
bV:efSi 1 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.

.

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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?
13
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.
15
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.
16
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.
DIRECT EXAMINATION
22
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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
t1

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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
19
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
20
GAMSAPDELLA/DIRECT
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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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
23
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
22
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.
24
GAMBARDELLA/DIRECT
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.
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
27
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?
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
26
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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
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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?
28
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.
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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1 :,A E.-.AM::;A'!': !
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 --
31
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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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.
32
GAMBARDELLA/DIRECT EXAMINATIOU\STAROPOLI
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.
33
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?
35
GAMBARDELLA/DIRECT
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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GAMBARDELLA/DIRECT EXAM!NA7IO?l\57AROPOLI
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.
39
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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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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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:
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
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
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
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GAMBARDELLA/DIRECT EXAMINATIOU\STAROPOLI
A I'm not sure when I was told. I was
47
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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
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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?
49
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
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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 --
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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.
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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.
53
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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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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 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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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
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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
60
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?
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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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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?
64
BAUCO\D!RECT
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.
65
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.. . 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
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BAUCO\DIRECT EXAMlNATIOU\STAROPOLOI
1

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
69
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
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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--
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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
72
1 BAUCO\D!RECT
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
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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.
75
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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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
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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
77
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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
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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?
81 82
1 ':' .. 1 :!'!' 7 F:::\M:::A::
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.
@
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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.
85
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?
87
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 ~ o n t l y
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
88
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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A Sure she is.
MS. FORTE: Objection as to relevance.
objection as to the form of the question.
Cumulative
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.
91
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?
92
1 BAVCO\D!PECT
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
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?
<!D
.
"
~
~
.
93
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
94
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2 building when he was there.
3 Q You did not own the building when he was
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there?
A No.
MS. FORTE: Judge, objection as to
relevance.
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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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.
24 Q Please continue and explain to us how
25 Webuilt or Alex Biagoni got involved with Parkway
101
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?
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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.
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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
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.
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.
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?
ID
.
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1 i1::f'f :' ,:
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
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 --
Onetime?
Several.
109
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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
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24
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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?
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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.
113
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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
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BAUCO\DIREcr EXAMINATION\STAROPOLOI
1
BAUCO\D!RE:T
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.
0
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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
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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
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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?
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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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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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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
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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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1 B ,, "! '\ : r: r '!" .; M : 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
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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.
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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
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1 BAUCO\D!RECT
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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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
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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.

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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?
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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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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?
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month.
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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.
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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
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 --
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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
140
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.
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
143
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
144
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?

-
.
145 146
1 1
2
3
4
5
6
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?
147
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.
148
1 BAUCO\DIRECT EXAMIRAT!ON\STAROPOLOI
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
149 150
1 :!lf-' 1 i \ :- ! R !-' . : r :\ li.!-i; 1\ ; : :; : : \fl :
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.

..
151 152
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
GD
.
.
-
153
1
7 ':.,:
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
155
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
15
16
17
18
19
20
21
22
23
24
25
154
:FF':' ;. . : .:,\;... i
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

THE COURT: You may inquire.
MS. FORTE:

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
156
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
I
157 158
1 1
2 . marked in Evidence.) 2 A Yes.
3
.o ... 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
e
22
- 23
24
25
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? . . .... ,. '
behalfofBurgess Associates'lnc.? ::
"5 .: Yes.". .,,_ '<'' .. .. :...::-';:t.;: : :
.A Richard Burgess and Maura 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?
159
BAUCO\CROSS EXAMINATION\FORTE
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
160
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?
. ''
.... 0
... .
.

161
1 EXAMINAT!ON\FORTE
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 --
25 A Please repeat that?
163
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 .; 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?
164
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
' .
,..;.,V'

165
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.
1
2
3
4
5
6
7
8
9
10
11
12
167
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
166
1 SAUCO\CROSS
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
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.
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.
":, .. 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
Q Why didn't we file a lien a-gainst Maura
Burgess's residence?
A . Why?
."lt
" a : : Yes ... ;,., -;. .. ;;-:..::
A . The same 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.
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 Overruled. Proceed.
. . ... ... 9. , : ... Q:'.. Bauco, after this initial capital
. -.. . ... '
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7.: ,-.; 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
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
that Ms. Staropoli said. We are talking
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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?
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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.
177 178
1 9AUCO\CROSS 1 3AUCO\CROSS
. . " 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
. . .. . _ .. : :: .. 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
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$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
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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 arean owner of 550 Realty
Corp:? ; ,: ... _. :-, .. ;._,._.. ,. .: , :;::.
A .: Yes... ........ ..
Q Should the $14,284. 10 be deducted from
the $80, 000 that were owned pursuant to the
9 promissory notice? ...
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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.
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
2 could have asked him that directly.
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
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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.
.. : ...
181 182
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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 ..
6 . supposedly these checks were made for payment? 6
.: 7
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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.
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.
.";.
.
' ...........
.-;:.
0
185
1
4 BY CATHRINE M. STAROPOLI, ESQ.:
5 ... " ... Q .. Ms. Mc Cosker, pleasespeak,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.
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
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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

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.
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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.
189
1 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
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
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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 twoapparently have 1. ,,, . :_,,
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
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.
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, look
1
it.is not
":, >.. Maura:. sig11 .
6 the papers from 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
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1 XC COSKER\DIRECT
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 -
. to.letiHo go.;' .:. . . .. .. '?:,:
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
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
197
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 ;: : . :"'.' :>.&:' ..
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
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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
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notary. The exact same notary. That is 19
20 why the DA is investigating. 20
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The police are approaching the DA 21
22 about this. Detective Benjamin of the New 22

23 Rochelle Police Department is going forward 23
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24 with this evidence against Webuilt, 24
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Mr. Biagoni and Mr. Bauco. It is the same 25
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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 :. : .. .. ,: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?
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?
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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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2 ' issue-;- 2
3 MS. FORTE: There is absolutely no 3
{.""'\ 4 of times my clients 4
. :' - :; "5 oHheitS.to niY office: What'. ... "
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7 MS. STAROPOLI: Mr. Bauco referred 7
8 them because it is his company, your Honor. 8
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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
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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
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these statements. I have done nothing
against her. I am saying there are some
unclear things here. is all Lam. .. .
'saying. -I havea1scl'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.
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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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2 CERTIFICATION
- 3
. 4 . '<. " The foregoing is a record of the above
on:.this 10th .day of March, 2009.
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ENIOR COURT REPORTER
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2 SUPREME COURT OF THE STATE OF NEW YORK
3 COUNTY OF WESTCHESTER
0 -----------------------------------------x
. , .. :"' ;. . ,, .,
6 -against-
7. MAURA BURGESS.t d t{ )
De1en an s.
8
iN5Ex"ii91"9ai2oor-------------x
9

10 FRANK BAUCO,
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Plaintiff{s),
-against-
MAURA BURGESS.t d t{ )
De1en an s.
iNDEX"ii91"99i2oof"""""""""""""""x
HOUSE

BE F 0 RE:

JANET PENNA
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.
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A P P E A RA N C E S:
AN GBER];, ESQS.
a.ev-for efenuant
Palm r ve e
1 Eso.
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
5
1 PROCEE::'.'1
2 , if Jannett Sergio .. Those were two the
3 50 percent owners. Their husbands
.. ,.;: ..; : ......
'.:. ,:. f'.' operation of the business. When my clients
" ... + : .. :.-::-_ 'j .. : 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
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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 at at framed --
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
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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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?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
running .. That is. ....
Judge .
. . I 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
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. ,, . THE couRT: 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.
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.
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
. .....
13
1 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
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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
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 . . ... ,, thatl over ;.
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.
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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
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
We objected to the nature of
those comments contained within her
affidavit
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. , 2 MS. STAROPOLI: You did not. I have
3 them right here. You did not object to the
Q,, .. i .. ; , :: ;
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
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.
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
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BURGESS-MC COSKER\OlREfT
over hear the conversation. She was
listening to Ms. Staropoli's repetition of
statements that apparently or allegedly I
rnade,to 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
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
' .
.....
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 .. ,..,.'j. ...... ,<"
in the end. I was the only one that had anything :
out<.of:all 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
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
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 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 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
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.
18 A Total bill is $61, 748. 81.
19 THE COURT: Let me see what you are
20 holding please?
21 (Document Handed to the Court.)
22 THE COURT: Continue.
23 Q Ms. Mc Cosker, is there anything the
24 Court should know with regards as to why you
25 should be awarded attorney fees?
25 26
1 BURGESS-MC COSKER\DIRECT EXAHINATION\STAROPOLI 1 9URGESS-XC
. 2 A I think the main thing you should know 2 A On paper, yes. ' ..:
3 is that I don't have any proof of any type of loan 3 Q When you say on paper; what do you mean?
4 .. to Mr. Bauco. 4 A I never went there cir had anything to do
11 .. 5 : :.;< )'thi!"!k they came after ha.d IT)ebecau$e ':,_..i.,5 .,.with :the business: I never anyone in :. - . ; ; ::c-:
6 they th.at I was going to to buy my 6. running --1 had nothing to do with it other tharf -
7 ex husband .of my house. It is important to 7 I put my name on it because my ex.husbandcould
8 note none of the other defendants in this case 8 not get a license with the OMV. That is all I had
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
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
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 way after the fact.
24 Q Do you recall testifying in March of
25 2008 at a hearing before Judge Liebowitz?
()
- .
'
..
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
. vou.r:kn.o'1'Jedge did receive. !,\ny
6. "!'oney as .a of this promissory note that was
7 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
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. , . . :.
,;. : MS. StARbPOi:Jh Yo.u'are'puttlrig'in .
6 whole transcript. '; '-" "" : : '
7 MS. FORTE:. Rip 82. I have .
8 another copy.
9 THE COURT: Please mark it into
10 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
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
33
1 BURGESS-MC COSKER\CROSS EXAMINATION\FORTE.
2 marked in evidence as plaintiffs exhibit 4,
3 please?
.. , ; ... :::., . :'.:"
... 6 THE COURT: Mark that as plaintiffs
6
.

.
7. . _in evidence.
8 (Whereupon, Plaintiffs Exhibit No. 4 is
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
3 regarding the business that yo1:1 _were 50 percent
4 owner of? > ;
5: A:;: ;1.wohfd ,"'<>:;
6 percent sure. I don't
7 was 50 percent owner. I can't.tell you 100 '
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 $75, 000 wire that
13 was made to the business?
14 A Yes.
15 Q Do you have any knowledge of that wire
16 being repaid?
17 A I have knowledge of checks written to
18 Mr. Gambardella. For the total amount I have no
19 idea.
20 Q You have knowledge of checks being paid
21 to Mr. Gambardella?
22 A Yes.
23 Q How much?
24 A I have no idea. There in the stack of
25 checks. There were checks written to him.
37
1 BURGESS-MC COSKER\CROSS EXAMrNATION\FORTE
2 ... :. _q. 99. you recall the amount of those
3 checks?
o 4 : IV!$. STAROPOLI: Objection. She asked
.. .... ,..;., - ,{> .: .. apd 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 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.
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 .; > . for that fuy: . : "j/:
6 . client somehow her out or .
7 singled.her out in
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
41
1 BURGESS-MC CCSKER\CROSS EXAM!NAT!ON\FORTE
2 - heard from Mr. Sergio. His accounts were
3 frozen .
... -.;Q ..... , . .;;.: ,,;,. .. :. '.f she 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
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 COSKER\CROSS
2 trying to sue my clients for $63, 000"'
3 That should be permitted in, Judge?
4 . . MS. STAROPOLI: That is her testimony .
. s-::) wh.atst)e
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
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.
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
...... :. :.;; ...
..... '' ,. : "'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
: . didthey put a lien on your home?". -' ... :, .. : 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
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BURGESS-MC COSKER\CROSS EXAMINATION\FORTE
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
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
49 50
1 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
ii. :. ;,,,: ':. the, :aper. That's ;;. this
6 .: QU.ESTION: Did you ever present .; 6 . answer is no it is were yoli ever informed
'
r .; -
7 . pictures to Ms. Rivera of or 7_ ,:;,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
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
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
. . ... .
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 .
:1:,., .. :". :. .,,.
. . 6 . MS. STAROPOLI: She is the owner: of .::,_; 6:
nothing to worry about, and he would take careof
. .:. : :- , .. .. ::, : '.'.
..
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?
17 REDIRECT EXAMINATION
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
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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
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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.
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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
.-. . . .....

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 i';
6 always gone and spoken to '
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.
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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 ::'--;:. ,:, .... :;;:;,,., ...... :,.(;
THE couRT: Did ahY;ol-i0 t0J(yoo .... .. ..
what tlie representation of your bill '
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.
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
61 62
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.
:,:;: ; ,; .. .. do know : .. 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 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
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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
.; .
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 yo 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?
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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
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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 variouswii.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?
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
69
1 SAUCO\D!RECT
2: Collision and it is in this transcript,
3 the money that Frank Bauco, individually,
4 . ; loaned to the corporation were comprised of
. 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
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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
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BAUCO\O!RECT
executed. His $75, 000 spanned'aperiod of
time before the promissory note was
executed when he ldaned the business money.
: ..:;\c Ms. 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
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,
73
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
,:,:.: . , .. . .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.
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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/:: exlremeiy 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
77
1 BAUCO\DIRECT EXAMINATION\FORTE
, .. , .. .. . .2 ... pr.oper. Overruled.
3 Q Mr. Bauco, I am showing you a document
. A_ . _"' ... 4 . ..en. for identification as
.. ...:' ,,,. i? 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.
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
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
. .. :. U:\' --':' <'.;'. ;:
6. ... ,._ A . For 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
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
.,._: :
.... _; "
81 82
BAUCO\DIREC7 EXAMINATION\fORTE 1 SAUCO\DIRECT
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 number 1319 for $400; do you 4 .. .A . :'.Okay .
. : 5/. recall at the last day of the hearing if .: .. : :. .:a,.:; Gan you!'lgain:ioak:at the-bottom of the :
. 6 Ms.Staropoli 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
2 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?
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.
19 1318 that you see just testified to in the amount
20 of$14,284.10?
21 A No.
23 1319 in the amount of $400 to FMB Industries?
24 A No.
25 MS. FORTE: Just one moment, your
84
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?
85
.1
BAUCO\DIRECT EXAMINATION\fORTE
:. 2 , . , : A . All of it
3 Q In April of 2006 when you brought your
.O .... '.' .':::;:. .
@
()
'
.
. 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
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'tcisig'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
89
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, ... 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
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 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.;,. ; '. : ,/:''"" . ; ,:-. .. : .. ;_,.
6 A: No.
7 Q Did we only send default lettersfo
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?
92
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
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
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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?
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?
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BAUCO\CROSS
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.
96
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?
the question.
Q Have you provided copies of the credit
card totally $27, 324.98?
1
2
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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 Your tionor, I respectfully'
11
6 . t9 this line of 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
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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
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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 ... . #._ ,! . . 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
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
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BAUCO\CROSS EXAMINAT!ON\STAROFOLl
.... admitted into this record because there is
sworn testimony by Steven Sergio in here
, .
. 6 ,. Mr. Bauco did indeed loan the company
G
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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
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.
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BAUCO\CROSS EXAM:NATION\STAROPOL:
two people where I don't even'.tiave an;;,
address for them when a Judge says you
don't need to give ttiem your address.
/' ' I.:#\ ; .. ,,. . , -t ' " ''" ' .
. docume.ritatlon from' < .. '
1

Mr. Sergio saying lllirs. 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
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
105
1 BAUCO\CROSS EXAMIATION\STAROPOLI 1
, ,. 2 ... , .. I-would rather go through it and 2
3 modify my request and only introduced pages 3
,.-: .. Q. ;,,'. ;:;; .. ,
4
5.
. . . . . ,_, -. : - were made by Mr. Bau co to the
. '. ; -...... , -.!. . _
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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
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3AUCO\CROSS
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
. . .. ,_ ... .,: . . <: ; 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
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.
109
9AUCO\CROSS EXAMINATION\STAROPOLI
::::- THE COURT: I will consider all
3 aspects.
:4 .... . Q: Mr. Bauco, lamgivingyouthat
'document. That does fook familiar to you?
:: ..... ;> : J)'..: ._,:.A.: Yes,
. . , 7-.. : :" THE COURT: For our purposes we will
8 mark it into evidence as Defendant D in
. ' 9 . evidence.
10 (Whereupon, Defendant's Exhibit No.Dis
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?
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?
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
Q That is your signature?.
110
\''"
3 A Yes, it is.
4. ,Q._ _Can you .refer tQ paragraph number 8?
. : ;-. .,.,_ :":;:.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 form
25 of the question.
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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.
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
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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?
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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
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
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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.
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
117
1. BAUCO\CROSS EXAMINAT!ON\STAROPDL!
2' numbers that were handwritten by you;
3 approximately?
.. ,,: . ... .. :;;,,,,, .. ,;>:".,':':

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0
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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?
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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
2 '
Q :Yes. . ,
3 A I thought you said an additional?
4 .. y; . Q Addition.al. It does say additional.
5 .. :, : .. you are th.at J saii;L.$15, 000
6 Jn. credit ca.rds? . , . . . .
7 , . . . Q ,. 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?
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
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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?
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
121
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BAUCO\CROSS EXAMINAT!09\STAROPOLl
1
SAUCO\CROSS
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. Yo don't have to be
a mathematician to 35, 25 and --
MS. STAROPOLI: But 1--
,;, ), , . ; .. :'.-.:;> :. ;: ,
6 . cards; correct? That is what your document
:'.)i'' . ''THE COURT: We .. will nothave any "'' :;
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
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
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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
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matter on ay of July, 2009.
\ &r1/)ld......
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