Burgess 143 Pages

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For the reasons stated in Defendant's Post Trial Memorandum of Law, this court should rule in favor of the Defendant Maura Burgess and against the Plaintiffs by awarding Ms. Burgess attorney's fees in excess of $61,748.81 based upon the bills previously submitted to the court (refer to Defendant's Exhibit "B" and pages 23 and 24 of the transcript dated July 15, 2009) plus additional fees for our last day in court and the preparation of this Closing Statement and Post Trial Memorandum of Law.

Transcript of Burgess 143 Pages

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    SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------x FRANK BAUCO,

    Plaintiff, Index Number: 9199/07

    -against-

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

    Defendants.

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

    AUG 1 4 2009 CHbEF CLEA"K

    WESTCHESTER SUPPfEU.! AND COUNTY COURTS

    ------------------------------------------------------------------x ANDREW GAMBARDELLA,

    Plaintiff, Index Number: 9198/07

    -against-

    MAURA BURGESS, RICHARD BURGESS, JEANETTE SERGIO and STEPHEN SERGIO

    Defendants.

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

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

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

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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

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  • 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&a