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and addresses only in a general way the Court’s holdings in
Herbst I granting respondent’s respective motions to dismiss for
lack of prosecution in the cases at docket Nos. 10001-00 and
11(...continued)
The only document attached to that affidavit is a document
entitled “NOTICE OF APPOINTMENT OF DIRECTOR” dated Oct. 12, 1995.
That document recites that “The current Directors of said Company
[Herbst Management Company] as of this date are Ronald P. Herbst,
Edward Bartoli and Andrea D. Herbst.” We conclude that Mr.
Herbst’s affidavit and the trust paper attached to that affidavit
in the case at docket No. 9999-00 do not establish who has the
authority to act on behalf of Herbst Management Trust in that
case. Mr. Herbst seems to suggest in Mr. Herbst’s affidavit,
without expressly stating, that he has that authority. However,
in the case at docket No. 9999-00, Mr. Bentivegna signed as
“Trustee” (1) the response to the Court’s December 3, 2001 Show
Cause Order and (2) the response to respondent’s motion to hold
petitioner in default.
We also note that attached as an exhibit to the Trust’s
motion to vacate in the case at docket No. 10000-00 is, inter
alia, an affidavit of Mr. Binge (Mr. Binge’s affidavit). Al-
though that affidavit purports to have been notarized in the
presence of a notary public, the affidavit bears no date on which
such notarization allegedly took place. Mr. Binge’s affidavit
that was attached to the Trust’s motion to vacate in the case at
docket No. 10000-00 is virtually identical to Mr. Herbst’s
affidavit that was attached to the Trust’s motion to vacate in
the case at docket No. 9999-00. Attached to Mr. Binge’s affida-
vit in the case at docket No. 10000-00 are, according to Mr.
Binge, “true and accurate copies of the originals” of the trust
documents pertaining to Herbst Charitable Trust, which Mr. Binge
alleges in Mr. Binge’s affidavit in that case “were maintained in
my possession until April, 2002.” There are no trust papers
attached to Mr. Binge’s affidavit in the case at docket No.
10000-00. We conclude that Mr. Binge’s affidavit in the case at
docket No. 10000-00 does not establish who has the authority to
act on behalf of Herbst Charitable Trust in that case. Mr. Binge
seems to suggest in his affidavit in that case, without expressly
stating, that he has that authority. However, in the case at
docket No. 10000-00, Mr. Bentivegna signed as “Trustee” the
response to the Court’s December 3, 2001 Show Cause Order and the
response to respondent’s motion to hold petitioner in default.
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