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Real estate agent agrees to pay $2,000 fine in failed home deal

A Buffalo real estate broker has admitted that he “demonstrated incompetence and/or untrustworthiness” during a transaction that went sour for everyone involved in 2012.

The broker, James Mack of Gurney, Becker and Bourne, also agreed to pay a $2,000 fine following an investigation by the state Department of State, which licenses real estate professionals.

At issue was a home at 67 Beard Ave., a Victorian in North Buffalo with more than 4,700 square feet. Mack represented would-be buyer David W. Tomasello, who portrayed himself as a successful businessman trying to relocate his Wave Energy Drink operation from North Carolina to Western New York. He and his wife had grown up in Hamburg and wanted to live closer to their roots.

Tomasello, in his own emails, explained that because he still had to sell a $1.5 million home in Mooresville, N.C., he preferred to rent 67 Beard for the remainder of 2012 then buy it at year’s end. That was OK with the seller, Rachel Lithgow, as long as Tomasello indeed bought the house at the end of the lease.

Mack erred in two ways, according to a consent order he signed last month: He misrepresented Tomasello’s financial viability and creditworthiness to Lithgow and her agent, Matthew Quagliano. Second, Mack gave Tomasello keys to the property before the proper checks were in hand and before Lithgow was ready to let him move in.

Later, as Lithgow and her attorney were trying to remove Tomasello, they learned he did not really own the house in North Carolina that supposedly delayed his purchase of 67 Beard. He had been renting the North Carolina home.

Further, the business Tomasello wanted to relocate, Wave Energy Drink, was locked up in legal wrangling with its disappointed investors. Finally, Lithgow learned that Tomasello had left New York for North Carolina in 2008 before paying a $2.7 million judgment levied by the state. The state Department of Environmental Conservation had cited him over an illegal dump that he operated as part of a failed business venture in Lackawanna.

All this was news to Mack as well. He told The Buffalo News for an article about the real estate transaction published in April 2012 that he was as surprised as everyone involved to learn that Tomasello wasn’t as financially fit to buy the house as he first appeared.

“I trusted the buyer’s credentials as presented to me,” Mack said at the time. “But I later found out those credentials were not true.”

In recent days, Mack said he believes he did nothing wrong professionally and signed the state’s consent order rather than risk a suspended license for some number of months.

“I clearly did not want to admit any wrongdoing,” he said, “because I think the wrongdoing was done by Mr. Tomasello and not by me. I just feel that I did everything I was supposed to do from a professional and a personal angle, and I don’t feel that I was at fault at all in this whole transaction.

“My reputation is very important to me,” he added. “I have been selling real estate for 25 years without incident. I behaved ethically. I behaved professionally.”

As for Tomasello, even though he expressed an interest in buying the house, and signed documents to lease and then purchase 67 Beard, he told The News in 2012 that he was not trying to buy a house and personally lacked the means to do so. He pointed out that he signed the documents in care of the “Tomasello Family Trust” but refused to say whether the trust had the means to buy a house or who controls the trust.

Why did Tomasello even sign a purchase contract? It was as a negotiating tool, he said at the time, to freeze the purchase price at $329,900 should the family trust want to buy the house at the end of 2012.

Lithgow is married to the actor Ian Lithgow, whose roles included a spot on the regular cast of the television sitcom “Third Rock From the Sun.” The cast included his father, actor John Lithgow.

Ian and Rachel Lithgow were moving from Buffalo to Philadelphia in 2012 so that she could accept a new job. A bank is now trying to sell the home at 67 Beard.