Yesterday afternoon, North Tonawanda City Court Judge William Lewis awarded Frank Budwey a warrant of eviction against Desires Unlimited d/b/a Valenti’s Restaurant, and a money judgment for $5,200 in unpaid rent, plus $500 in costs and attorney’s fees. Valenti’s has 30 days to appeal.
The unusually long and contentious eviction trial took place over two days, and ended one of the more bizarre restaurant stories in recent memory. Just five short weeks ago, veteran Buffalo News restaurant critic Janice Okun lauded the volume of Valenti’s portions and booths, awarding it 2 1/2 stars. In that review, Okun repeated boasts that co-owners Terry Valenti and Lori Brocuglio had made about Valenti’s work history, including a wild claim that Valenti had defeated Bobby Flay on the TV program Iron Chef America with an award-winning dish of sea bass stuffed with artichokes and parsnips – quite possibly the most exotic “haute cuisine” Valenti could imagine.
But Valenti’s had bigger problems than just a cook with a false resume. Although Budwey had waived the rent for part of October and all of November, he fully expected payment for December and January at $3,000 per month. By late December, Valenti’s still owed that month’s rent, and was losing purveyor accounts for non-payment. Valenti and Brocuglio paid Budwey $300 around that time, and a dispute arose at trial whether they paid $500 or $1500 in cash in early January. The court found that Valenti’s had, in fact, paid $500, because Budwey presented contemporaneous evidence of the cash deposits in both his business ledger and his bank records. He claimed that Lori Brocuglio, who admitted writing “payment in full” on the receipt also doctored it to read $1,500 instead of $500.
The legal issue is that accepting money as “payment in full” would have potentially bound Budwey to that figure for rents then due and owing. The judge found, however, that other communications from clearly showed that he did not intend to be so bound. Around the same time the receipt was given, a Valenti’s check was made out to Frank “Budway” for $3,000. Much of Tuesday’s trial centered around how Budwey got the check, and who wrote it. Budwey said either Lori or Terry gave it to him, and he took it to M&T, where he discovered that it would not clear. Budwey then turned the check over to the authorities, and Brocuglio awaits trial on misdemeanor charges of knowingly passing a bad check.
Here is an example of a check that Brocuglio admits to having written:
Compare that to the disputed $3,000 rent check that took up so much testimony and argument at trial:
The mis-spelling of Budway’s name matches Brocuglio’s clumsily constructed Facebook page from last week.
In rendering his decision, Judge Lewis said that “Brocuglio’s claims fly in the face of the testimony and documents”. He found that it was disingenuous for her to suggest that Budwey forged the check. Brocuglio likely didn’t realize that Budwey had kept two voice mails she left for him in early January. In the first message, which was played for the judge in court, Brocuglio acknowledges that Terry Valenti had given the check to Budwey, and asks him not to cash it. She said that they would pay the rent via certified funds instead. However, the next day Brocuglio called again, and had completely changed her story. In a second voice mail played for the judge in court, Brocuglio got a message that Budwey had tried to cash the check, and was notified that the police were now involved. In both calls, she alluded to getting a lawyer to go after Budwey, but now denies knowing of any check, implying that Budwey stole or forged it.
Brocuglio also claimed that Budwey had agreed to waive the rent for December and January, but the documentary evidence directly contradicted that testimony.
Brocuglio claimed to the judge that they were ready, willing, and able to pay the rent, but that a dispute that arose with Brocuglio’s nominal “partner” in the business, Melissa Janiszewski, had tied up the bank account. Janiszewski spoke to me in court and disputed this claim, stating that she had no signing privileges on the account, was not named on the account, and that Brocuglio and Valenti had deliberately kept her in the dark about the business’ finances. It was also revealed that Janiszewski, a legal co-owner in the Valenti’s venture, was not named on the lease. Since there’s a money judgment arising out of that lease, she’s rather lucky in this respect, but it indicates that as early as the formation of the business, Valenti and Brocuglio appeared to be conspiring to use Janiszewski as an unwitting pawn in a scheme to run up credit with no intention of repayment. Instead, an old DBA of Terry Valenti’s dating back a decade, the sex-toy-shop-sounding “Desires Unlimited” was listed on the lease as DBA Valenti’s Restaurant. However, a DBA is merely a business name – it is not a legal entity. That’s why the name of a person or corporation precedes the letters “DBA” on legal documents. In this case, however, regardless of the illegality of one DBA doing business as another DBA, Lori Brocuglio signed the lease as a personal guarantor.
In a dramatic twist in the middle of the trial, Terry Valenti, who looked quite different without his facial hair and bandanna, was escorted from the courtroom by deputies and did not return. Mr. Valenti was apprehended by the Niagara County Sheriff’s Office on a felony warrant for forgery originating from Midland County, Texas. After losing his job at Captain Hiram’s in Florida, Valenti moved to Texas, where he cooked at a retirement community in Odessa. Valenti stands accused of forging an ex-girlfriend’s name on a Power of Attorney and title, to fraudulently transfer a motor vehicle for his benefit. Mr. Valenti was led out while Ms. Brocuglio stood at trial with her lawyer, and they were advised of Mr. Valenti’s unexpected departure during a break in the proceedings. He awaits extradition proceedings in the Niagara County Jail.
After the proceedings, Mr. Budwey suggested that the Valenti defendants waive any right to retrieve belongings from the restaurant property, and that Budwey would in turn waive the money judgment. For his part, Budwey was happy to have his building back, in the hopes that he can now re-rent it to a less dramatic, more competent tenant. Brocuglio and Valenti had boasted of taking Budwey to Supreme Court for damages relating to his alleged self-help and constructive eviction measures, but with Valenti on his way to Texas and Brocuglio now with a $5000+ judgment over her head, and being behind on the rent at her residential apartment in Eden, it is unknown whether any such action will be pursued.
Sources who contacted me yesterday add to the story – in running their business, Valenti and Brocuglio used fake social security numbers. When one vendor investigated the Valenti’s operators in an effort to secure fees owed, they discovered that staff – when paid – was paid cash or by business check without required withholdings. They also found that Valenti and Brocuglio had a scheme in the works to use the time between service of the notice to quit and the eviction trial to gut the building and auction off all the contents – Budwey’s “self help” prevented that scheme from taking place, but that Valenti had apparently retained an auctioneer for that purpose.
Valenti’s restaurant is no more. It leaves behind a trail of cheated vendors and ex-partners. From the documents shown in court, it is safe to presume that it was deceitful not only in its operation, but even in its very foundation. I don’t know whether this is a unique situation, or one that is common in every place, all the time. In the end, Valenti’s taught us that lying isn’t a good business plan, and that it doesn’t take much to operate a reasonably successful red sauce joint in a small Niagara County city, as long as you treat your patrons and employees with respect, and serve decent food at a reasonable price.