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1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL
CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
2 GENERAL JURISDICTION DIVISION
3 CASE NO.: 50-2020-CA-012935
4
BEN-ZION ALCALAY,
5
Plaintiff,
6
vs.
7
8 ATLAS CYBERSECURITY, LLC,
A NEW YORK LIMITED LIABILITY COMPANY,
9 DACS CYBERSECURITY HOLDINGS, LLC,
A NEW YORK LIMITED LIABILITY COMPANY,
10 BARRY DYNKIN AND BENJAMIN DYNKIN,
11 Defendants.
________________________________________/
12
13 Via Zoom Conference
Wednesday, November 24, 2021
14 9:30 a.m. to 11:01 a.m.
15
16
17
18
19
20
21
22
23 This cause came on for hearing before the
24 Honorable HOWARD K. COATES, Circuit Court Judge, in
25 Chambers, pursuant to notice.
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1 APPEARANCES:
2
3 JONATHAN M. DAVIDOFF, ESQUIRE
DAVIDOFF LAW FIRM, PLLC
4 228 E 45th Street
Suite 1110
5 New York, NY 10017-3303
Telephone: 212-587-5971
6 E-mail: jonathan@davidofflawfirm.com
Attorney for Plaintiff
7
8
GARY S. ROSEN, ESQUIRE
9 ROSEN LAW LLC
216 Lakeville Road
10 Great Neck, New York 11020
Telephone: (516)437-3400
11 E-mail: grosen@rosenlawllc.com
Attorney for Defendants
12
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1 INDEX
2
3 WITNESS PAGE
4 BENJAMIN DYNKIN
Cross-Examination by MR. DAVIDOFF ...........10
5
Redirect Examination by MR. ROSEN ............53
6
JOHN SAVAGE
7
Direct Examination by MR. DAVIDOFF ............60
8
Cross-Examination by MR. ROSEN ..............83
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10
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1 PLAINTIFF'S EXHIBITS IN EVIDENCE
2 NUMBER DESCRIPTION PAGE
3 4 Photographs .......................28
4
5 Sign at the entrance of the .......32
5 park
6
6 Photograph of Benjamin Dynkin's ...66
7 house
8
7 Photograph of Benjamin Dynkin's ...69
9 house
10
8 Affidavit of Service ..............72
11
12 9 January 26, 2021 Affidavit of .....76
Service
13
14 10 January 26, 2021 Affidavit of .....78
Service
15
16 11 April 29, 2021 Amended ............79
Affidavit of Service
17
18 12 April 30, 2021 Amended ............80
Affidavit of Service
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20
21
22
23
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1 PLAINTIFF'S EXHIBITS FOR IDENTIFICATION
2 NUMBER DESCRIPTION PAGE
3 5 Photograph ........................67
4
3 Affidavit of Service ..............71
5
6 4 January 26, 2021 Affidavit of .....73
Service
7
8 6 Amended Affidavit ................76
9
7 April 29, 2021 Amended ............78
10 Affidavit of Service
11
8 April 30, 2021 Amended ............79
12 Affidavit of Service
13
10 Barry Dynkin DMV Transcript .......80
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1 THE COURT: Good morning, everyone. This
2 is Judge Coates. Case number 2020-CA-12935.
3 Let me have appearances, please.
4 MR. DAVIDOFF: Good morning, Your Honor,
5 on behalf of the plaintiff, Jonathan Davidoff
6 from the Davidoff Law Firm.
7 THE COURT: Okay.
8 MR. ROSEN: Good morning, Judge. Gary
9 Rosen, Rosen Law, LLC for defendants.
10 THE COURT: All right. We are on a
11 continuation of an evidentiary hearing with
12 regards to defendant's motion to set aside the
13 judicial default, et cetera. We were in the
14 middle by my notes, of the cross-examination of
15 Mr. Dynkin; correct?
16 MR. DAVIDOFF: Benjamin Dynkin, Your
17 Honor.
18 THE COURT: Mr. Rosen?
19 MR. ROSEN: Yes, Judge.
20 THE COURT: Okay. All right. You were in
21 the cross; correct?
22 MR. DAVIDOFF: Yes, Your Honor.
23 THE COURT: Are you ready to proceed?
24 MR. DAVIDOFF: I am, Your Honor. One
25 moment. Something just happened with my
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1 screen. Yes, I am, Judge. Thank you.
2 THE COURT: All right. Do we have the
3 witness?
4 MR. DAVIDOFF: We do and we have a court
5 reporter, Your Honor.
6 THE COURT: All right. Mr. Dynkin, let me
7 go ahead and have you raise your right hand
8 again since it's been a new day.
9 Thereupon:
10 BENJAMIN DYNKIN
11 Was called as a witness and, having been first duly
12 sworn and responding, "Yes, I do," was
13 examined and testified as follows:
14 THE COURT: I see a number of people in
15 the hearing room. I cannot recall if the rule
16 was invoked. Was the rule invoked in this
17 proceeding?
18 MR. DAVIDOFF: It is, Your Honor. The
19 rule is -- well, I guess, the rule -- Mr.
20 Barry Dynkin doesn't -- is a party, so he's
21 entitled to be here.
22 THE COURT: He's the witness so he's got
23 to be here. Are there any other people in the
24 hearing room that are witnesses in this case
25 that are to be called by the plaintiff or the
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1 movant.
2 MR. DAVIDOFF: Your Honor, I have two
3 witnesses; the process server and Mr. Ribacoff
4 a private investigator, who either one of them
5 they may be called; that's why they are here.
6 THE COURT: I am going to put them in the
7 waiting room then.
8 MR. ROSEN: I would like to know who else
9 is on this because there is other people.
10 THE COURT: I will take care of it. Let
11 me go through it one at a time.
12 MR. ROSEN: Thank you.
13 THE COURT: Mr. Ribacoff has been moved to
14 the waiting room. Who is other one, Mr.
15 Davidoff?
16 MR. DAVIDOFF: It says Bill Miotok.
17 THE COURT: Okay. That's a witness as
18 well?
19 MR. DAVIDOFF: Yes.
20 THE COURT: Mr. Miotok, you are being
21 moved to the waiting room subject to being
22 called as a witness. All right.
23 So that leaves in the hearing room me, Mr.
24 Dynkin, Mr. Rosen, Mr. Davidoff. Who is
25 Alcalay?
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1 MR. DAVIDOFF: Your Honor, those are not
2 witnesses. Ben-Zion's iPhone is the plaintiff
3 and the other two Alcalays are investors in --
4 well, through their limited liability. They
5 are the controlling members --
6 THE COURT: All right. Ben-Zion's iPhone;
7 who is that?
8 MR. DAVIDOFF: That's the plaintiff.
9 THE COURT: And then we have the clerk and
10 we have Ms. Santos as the court reporter, so I
11 think everything is --
12 MR. ROSEN: Judge, we would ask that if
13 they are going be present that they should have
14 their cameras on, so we know who's there. We
15 don't know who's there.
16 MR. DAVIDOFF: Your Honor, none of them
17 are witnesses and --
18 THE COURT: No, if they are going to be
19 present in my Zoom hearing they have to have
20 their video on so I can see them. If you are
21 going to be present you need to have your video
22 on so I can see who you are and we can make a
23 determination as to who is present in this
24 hearing.
25 So Alcalay has to have his video on and
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1 the second Barry Dynkin connection.
2 MR. DAVIDOFF: And Ben-Zion.
3 THE COURT: And Ben-Zion. All right. The
4 last one is Alcalay that needs to go into
5 video. We only have an hour for -- I need to
6 get people cooperating and moving quickly here.
7 Let's have Alcalay go on video or I am going to
8 put you in the waiting room.
9 MR. ALCALAY: I don't know how to do that.
10 MR. DAVIDOFF: You are fine. Turn your
11 mute on. Here. I will mute you.
12 MR. ALCALAY: Okay.
13 MR. DAVIDOFF: There.
14 THE COURT: All right. Okay.
15 Mr. Davidoff, you may continue with your cross.
16 MR. DAVIDOFF: Thank you, Your Honor. Mr.
17 CROSS-EXAMINATION
18 BY MR. DAVIDOFF:
19 Q Mr. Dynkin, the last time we were here I
20 asked you if you recall where you were on
21 January 5th, 2021, and you said you don't recall.
22 It was a year ago. Do you recall stating that?
23 A Yes.
24 Q Okay. But at that time Gary Rosen was
25 your attorney for all matters involving the
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1 Alcalays, as well as involving DACS and Atlas
2 Cybersecurity correct?
3 A Correct.
4 Q And he's your agent; correct?
5 MR. ROSEN: Objection.
6 THE COURT: Overruled. You may answer.
7 THE WITNESS: What do you mean in regards
8 to him being my agent?
9 BY MR. DAVIDOFF:
10 Q Mr. Dynkin, you went to law school and you
11 graduated law school; correct?
12 MR. ROSEN: Objection.
13 THE COURT: Overruled. You can answer,
14 Mr. Dynkin.
15 THE WITNESS: Yes.
16 BY MR. DAVIDOFF:
17 Q You know what an agent is; correct?
18 MR. ROSEN: Objection.
19 THE COURT: Overruled.
20 THE WITNESS: It can mean a lot of
21 different things in a lot of different
22 contexts.
23 BY MR. DAVIDOFF:
24 Q I'm asking you when a lawyer is
25 representing you in a party, he's your agent;
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1 correct?
2 A In certain limited capacities; correct.
3 Q Did you ever limit the capacity for Mr.
4 Rosen?
5 A In terms of explicitly doing so? Yes,
6 he's only representing me in cases he is
7 representing me in.
8 Q Right. And you just testified that he
9 represented you in all matters involving the
10 Alcalays, as well as involving DACS and Atlas;
11 correct?
12 MR. ROSEN: Objection. That's not the
13 testimony, Judge.
14 THE COURT: Overruled. You can cover it
15 in redirect.
16 MR. ROSEN: Okay.
17 THE COURT: Proceed.
18 THE WITNESS: So at different points in
19 time he was representing us formally and
20 advising us in other capacities. You know, he
21 only represents us in matters when he's listed
22 as representing us in matters.
23 MR. DAVIDOFF: Right. Okay.
24 BY MR. DAVIDOFF:
25 Q He only represented you in matters that he
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1 represented you in matters.
2 So are you saying that if Mr. Rosen did
3 not file a notice of appearance, he was not
4 representing your interest when he spoke on your
5 behalf?
6 A No. I don't think that he could legally
7 be considered my agent at that time, with respect to
8 matters that he's not noticed for appearance.
9 MR. DAVIDOFF: Your Honor, can I share
10 screen, please?
11 THE COURT: You may.
12 MR. DAVIDOFF: I'm showing you what was
13 previously entered as plaintiff's exhibit --
14 sorry -- as Exhibit 2 in evidence.
15 BY MR. DAVIDOFF:
16 Q Do you recall this e-mail?
17 A I recall you showing me this e-mail
18 previously.
19 Q Okay. So you recall seeing this e-mail;
20 correct?
21 A Again, you showing it to me; not in other
22 capacities.
23 Q Okay. So it's talking about the Ben-Zion
24 actions in Florida as the subject line. Do you see
25 that?
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1 A Yes.
2 Q And you recall that Mr. Rosen threatened
3 to sue Ben-Zion Alcalay in the Eastern District of
4 New York for millions of dollars; correct?
5 MR. ROSEN: Objection, Judge, that's not
6 what the document says.
7 THE COURT: He didn't say that's what the
8 document said. He asked if you recall.
9 Objection overruled.
10 THE WITNESS: Mr. Davidoff, could you
11 please repeat the question?
12 (Thereupon, the portion referred to was
13 read by the reporter as above recorded.)
14 THE WITNESS: No.
15 BY MR. DAVIDOFF:
16 Q So at no point in time did Mr. Rosen have
17 the authority to speak on your behalf, DACS' behalf
18 or Atlas' behalf threatening to sue Ben-Zion Alcalay
19 for millions of dollars; correct?
20 A That is not the case at all.
21 Q Okay. So he did have authority to make
22 that threat, correct, make that representation?
23 MR. ROSEN: Objection.
24 THE WITNESS: As long as we are properly
25 calling it representation, yes.
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1 MR. DAVIDOFF: Okay. Right.
2 BY MR. DAVIDOFF:
3 Q No lawsuit was filed on Ben-Zion Alcalay
4 on your behalf, your brother's behalf or DACS or
5 Atlas; correct?
6 A I don't know that's correct actually. I
7 believe there are counterclaims now against -- oh,
8 against Ben-Zion; correct.
9 Q Oh. So there's no action, but there was a
10 threat of that action by Mr. Rosen; correct?
11 MR. ROSEN: Judge, I object to the
12 characterization of the word "threat".
13 THE COURT: That objection is overruled,
14 but Mr. Davidoff, I need some context here.
15 How is this relevant, because we have a limited
16 time this morning. How is this relevant to the
17 motion that's under consideration?
18 MR. DAVIDOFF: Sure, Your Honor. Our
19 position is if you look at Exhibit 2 there's
20 the representation that they are going to sue
21 Ben-Zion Alcalay in the Eastern District of New
22 York. I am highlighting it, Your Honor.
23 THE COURT: I see that.
24 MR. DAVIDOFF: Okay. In the same e-mail
25 back in January 2021 where they are claiming
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1 that they are going to file a motion to dismiss
2 in this action. It is an issue of --
3 THE COURT: I get that the e-mail was
4 relevant. What I don't get is this continued
5 cross-examination on what they are doing in New
6 York as being relevant at all on what I have to
7 decide.
8 MR. DAVIDOFF: Your Honor, it has
9 nothing -- respectfully, it has nothing -- it
10 is all about the state of mind; the intent,
11 when they knew things and --
12 THE COURT: Respectfully, move on. I
13 don't find it relevant. Move on.
14 MR. DAVIDOFF: Okay.
15 BY MR. DAVIDOFF:
16 Q Mr. Dynkin, in January of this year 2021,
17 Mr. Rosen had authority to speak on your behalf with
18 respect to matters involving Ben-Zion Alcalay;
19 correct?
20 A Not necessarily all matters involving
21 Ben-Zion Alcalay.
22 Q Mr. Dynkin, which matters was Mr. Rosen
23 not authorized to speak on your behalf or the
24 company's behalf, meaning Atlas and DACS regarding
25 Ben-Zion Alcalay?
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1 MR. ROSEN: Objection.
2 THE COURT: Overruled.
3 THE WITNESS: I don't think that's the way
4 authority works. Authority is given; not given
5 plenipotentiary and then limited. I think your
6 characterization is completely off base.
7 BY MR. DAVIDOFF:
8 Q Mr. Dynkin, you previously testified that
9 you limited his authority --
10 A No.
11 Q With respect to Mr. Alcalay, what was he
12 limited to representing you in?
13 A Saying whether or not he had authority to
14 act in a certain regard is not the same thing as
15 choosing to explicitly limit his authority.
16 THE COURT: Mr. Dynkin, I don't need a
Preview
FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 1 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 2 GENERAL JURISDICTION DIVISION 3 CASE NO.: 50-2020-CA-012935 4 BEN-ZION ALCALAY, 5 Plaintiff, 6 vs. 7 8 ATLAS CYBERSECURITY, LLC, A NEW YORK LIMITED LIABILITY COMPANY, 9 DACS CYBERSECURITY HOLDINGS, LLC, A NEW YORK LIMITED LIABILITY COMPANY, 10 BARRY DYNKIN AND BENJAMIN DYNKIN, 11 Defendants. ________________________________________/ 12 13 Via Zoom Conference Wednesday, November 24, 2021 14 9:30 a.m. to 11:01 a.m. 15 16 17 18 19 20 21 22 23 This cause came on for hearing before the 24 Honorable HOWARD K. COATES, Circuit Court Judge, in 25 Chambers, pursuant to notice. Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 2 1 APPEARANCES: 2 3 JONATHAN M. DAVIDOFF, ESQUIRE DAVIDOFF LAW FIRM, PLLC 4 228 E 45th Street Suite 1110 5 New York, NY 10017-3303 Telephone: 212-587-5971 6 E-mail: jonathan@davidofflawfirm.com Attorney for Plaintiff 7 8 GARY S. ROSEN, ESQUIRE 9 ROSEN LAW LLC 216 Lakeville Road 10 Great Neck, New York 11020 Telephone: (516)437-3400 11 E-mail: grosen@rosenlawllc.com Attorney for Defendants 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 3 1 INDEX 2 3 WITNESS PAGE 4 BENJAMIN DYNKIN Cross-Examination by MR. DAVIDOFF ...........10 5 Redirect Examination by MR. ROSEN ............53 6 JOHN SAVAGE 7 Direct Examination by MR. DAVIDOFF ............60 8 Cross-Examination by MR. ROSEN ..............83 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 4 1 PLAINTIFF'S EXHIBITS IN EVIDENCE 2 NUMBER DESCRIPTION PAGE 3 4 Photographs .......................28 4 5 Sign at the entrance of the .......32 5 park 6 6 Photograph of Benjamin Dynkin's ...66 7 house 8 7 Photograph of Benjamin Dynkin's ...69 9 house 10 8 Affidavit of Service ..............72 11 12 9 January 26, 2021 Affidavit of .....76 Service 13 14 10 January 26, 2021 Affidavit of .....78 Service 15 16 11 April 29, 2021 Amended ............79 Affidavit of Service 17 18 12 April 30, 2021 Amended ............80 Affidavit of Service 19 20 21 22 23 24 25 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 5 1 PLAINTIFF'S EXHIBITS FOR IDENTIFICATION 2 NUMBER DESCRIPTION PAGE 3 5 Photograph ........................67 4 3 Affidavit of Service ..............71 5 6 4 January 26, 2021 Affidavit of .....73 Service 7 8 6 Amended Affidavit ................76 9 7 April 29, 2021 Amended ............78 10 Affidavit of Service 11 8 April 30, 2021 Amended ............79 12 Affidavit of Service 13 10 Barry Dynkin DMV Transcript .......80 14 15 16 17 18 19 20 21 22 23 24 25 Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 6 1 THE COURT: Good morning, everyone. This 2 is Judge Coates. Case number 2020-CA-12935. 3 Let me have appearances, please. 4 MR. DAVIDOFF: Good morning, Your Honor, 5 on behalf of the plaintiff, Jonathan Davidoff 6 from the Davidoff Law Firm. 7 THE COURT: Okay. 8 MR. ROSEN: Good morning, Judge. Gary 9 Rosen, Rosen Law, LLC for defendants. 10 THE COURT: All right. We are on a 11 continuation of an evidentiary hearing with 12 regards to defendant's motion to set aside the 13 judicial default, et cetera. We were in the 14 middle by my notes, of the cross-examination of 15 Mr. Dynkin; correct? 16 MR. DAVIDOFF: Benjamin Dynkin, Your 17 Honor. 18 THE COURT: Mr. Rosen? 19 MR. ROSEN: Yes, Judge. 20 THE COURT: Okay. All right. You were in 21 the cross; correct? 22 MR. DAVIDOFF: Yes, Your Honor. 23 THE COURT: Are you ready to proceed? 24 MR. DAVIDOFF: I am, Your Honor. One 25 moment. Something just happened with my Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 7 1 screen. Yes, I am, Judge. Thank you. 2 THE COURT: All right. Do we have the 3 witness? 4 MR. DAVIDOFF: We do and we have a court 5 reporter, Your Honor. 6 THE COURT: All right. Mr. Dynkin, let me 7 go ahead and have you raise your right hand 8 again since it's been a new day. 9 Thereupon: 10 BENJAMIN DYNKIN 11 Was called as a witness and, having been first duly 12 sworn and responding, "Yes, I do," was 13 examined and testified as follows: 14 THE COURT: I see a number of people in 15 the hearing room. I cannot recall if the rule 16 was invoked. Was the rule invoked in this 17 proceeding? 18 MR. DAVIDOFF: It is, Your Honor. The 19 rule is -- well, I guess, the rule -- Mr. 20 Barry Dynkin doesn't -- is a party, so he's 21 entitled to be here. 22 THE COURT: He's the witness so he's got 23 to be here. Are there any other people in the 24 hearing room that are witnesses in this case 25 that are to be called by the plaintiff or the Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 8 1 movant. 2 MR. DAVIDOFF: Your Honor, I have two 3 witnesses; the process server and Mr. Ribacoff 4 a private investigator, who either one of them 5 they may be called; that's why they are here. 6 THE COURT: I am going to put them in the 7 waiting room then. 8 MR. ROSEN: I would like to know who else 9 is on this because there is other people. 10 THE COURT: I will take care of it. Let 11 me go through it one at a time. 12 MR. ROSEN: Thank you. 13 THE COURT: Mr. Ribacoff has been moved to 14 the waiting room. Who is other one, Mr. 15 Davidoff? 16 MR. DAVIDOFF: It says Bill Miotok. 17 THE COURT: Okay. That's a witness as 18 well? 19 MR. DAVIDOFF: Yes. 20 THE COURT: Mr. Miotok, you are being 21 moved to the waiting room subject to being 22 called as a witness. All right. 23 So that leaves in the hearing room me, Mr. 24 Dynkin, Mr. Rosen, Mr. Davidoff. Who is 25 Alcalay? Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 9 1 MR. DAVIDOFF: Your Honor, those are not 2 witnesses. Ben-Zion's iPhone is the plaintiff 3 and the other two Alcalays are investors in -- 4 well, through their limited liability. They 5 are the controlling members -- 6 THE COURT: All right. Ben-Zion's iPhone; 7 who is that? 8 MR. DAVIDOFF: That's the plaintiff. 9 THE COURT: And then we have the clerk and 10 we have Ms. Santos as the court reporter, so I 11 think everything is -- 12 MR. ROSEN: Judge, we would ask that if 13 they are going be present that they should have 14 their cameras on, so we know who's there. We 15 don't know who's there. 16 MR. DAVIDOFF: Your Honor, none of them 17 are witnesses and -- 18 THE COURT: No, if they are going to be 19 present in my Zoom hearing they have to have 20 their video on so I can see them. If you are 21 going to be present you need to have your video 22 on so I can see who you are and we can make a 23 determination as to who is present in this 24 hearing. 25 So Alcalay has to have his video on and Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 10 1 the second Barry Dynkin connection. 2 MR. DAVIDOFF: And Ben-Zion. 3 THE COURT: And Ben-Zion. All right. The 4 last one is Alcalay that needs to go into 5 video. We only have an hour for -- I need to 6 get people cooperating and moving quickly here. 7 Let's have Alcalay go on video or I am going to 8 put you in the waiting room. 9 MR. ALCALAY: I don't know how to do that. 10 MR. DAVIDOFF: You are fine. Turn your 11 mute on. Here. I will mute you. 12 MR. ALCALAY: Okay. 13 MR. DAVIDOFF: There. 14 THE COURT: All right. Okay. 15 Mr. Davidoff, you may continue with your cross. 16 MR. DAVIDOFF: Thank you, Your Honor. Mr. 17 CROSS-EXAMINATION 18 BY MR. DAVIDOFF: 19 Q Mr. Dynkin, the last time we were here I 20 asked you if you recall where you were on 21 January 5th, 2021, and you said you don't recall. 22 It was a year ago. Do you recall stating that? 23 A Yes. 24 Q Okay. But at that time Gary Rosen was 25 your attorney for all matters involving the Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 11 1 Alcalays, as well as involving DACS and Atlas 2 Cybersecurity correct? 3 A Correct. 4 Q And he's your agent; correct? 5 MR. ROSEN: Objection. 6 THE COURT: Overruled. You may answer. 7 THE WITNESS: What do you mean in regards 8 to him being my agent? 9 BY MR. DAVIDOFF: 10 Q Mr. Dynkin, you went to law school and you 11 graduated law school; correct? 12 MR. ROSEN: Objection. 13 THE COURT: Overruled. You can answer, 14 Mr. Dynkin. 15 THE WITNESS: Yes. 16 BY MR. DAVIDOFF: 17 Q You know what an agent is; correct? 18 MR. ROSEN: Objection. 19 THE COURT: Overruled. 20 THE WITNESS: It can mean a lot of 21 different things in a lot of different 22 contexts. 23 BY MR. DAVIDOFF: 24 Q I'm asking you when a lawyer is 25 representing you in a party, he's your agent; Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 12 1 correct? 2 A In certain limited capacities; correct. 3 Q Did you ever limit the capacity for Mr. 4 Rosen? 5 A In terms of explicitly doing so? Yes, 6 he's only representing me in cases he is 7 representing me in. 8 Q Right. And you just testified that he 9 represented you in all matters involving the 10 Alcalays, as well as involving DACS and Atlas; 11 correct? 12 MR. ROSEN: Objection. That's not the 13 testimony, Judge. 14 THE COURT: Overruled. You can cover it 15 in redirect. 16 MR. ROSEN: Okay. 17 THE COURT: Proceed. 18 THE WITNESS: So at different points in 19 time he was representing us formally and 20 advising us in other capacities. You know, he 21 only represents us in matters when he's listed 22 as representing us in matters. 23 MR. DAVIDOFF: Right. Okay. 24 BY MR. DAVIDOFF: 25 Q He only represented you in matters that he Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 13 1 represented you in matters. 2 So are you saying that if Mr. Rosen did 3 not file a notice of appearance, he was not 4 representing your interest when he spoke on your 5 behalf? 6 A No. I don't think that he could legally 7 be considered my agent at that time, with respect to 8 matters that he's not noticed for appearance. 9 MR. DAVIDOFF: Your Honor, can I share 10 screen, please? 11 THE COURT: You may. 12 MR. DAVIDOFF: I'm showing you what was 13 previously entered as plaintiff's exhibit -- 14 sorry -- as Exhibit 2 in evidence. 15 BY MR. DAVIDOFF: 16 Q Do you recall this e-mail? 17 A I recall you showing me this e-mail 18 previously. 19 Q Okay. So you recall seeing this e-mail; 20 correct? 21 A Again, you showing it to me; not in other 22 capacities. 23 Q Okay. So it's talking about the Ben-Zion 24 actions in Florida as the subject line. Do you see 25 that? Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 14 1 A Yes. 2 Q And you recall that Mr. Rosen threatened 3 to sue Ben-Zion Alcalay in the Eastern District of 4 New York for millions of dollars; correct? 5 MR. ROSEN: Objection, Judge, that's not 6 what the document says. 7 THE COURT: He didn't say that's what the 8 document said. He asked if you recall. 9 Objection overruled. 10 THE WITNESS: Mr. Davidoff, could you 11 please repeat the question? 12 (Thereupon, the portion referred to was 13 read by the reporter as above recorded.) 14 THE WITNESS: No. 15 BY MR. DAVIDOFF: 16 Q So at no point in time did Mr. Rosen have 17 the authority to speak on your behalf, DACS' behalf 18 or Atlas' behalf threatening to sue Ben-Zion Alcalay 19 for millions of dollars; correct? 20 A That is not the case at all. 21 Q Okay. So he did have authority to make 22 that threat, correct, make that representation? 23 MR. ROSEN: Objection. 24 THE WITNESS: As long as we are properly 25 calling it representation, yes. Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 15 1 MR. DAVIDOFF: Okay. Right. 2 BY MR. DAVIDOFF: 3 Q No lawsuit was filed on Ben-Zion Alcalay 4 on your behalf, your brother's behalf or DACS or 5 Atlas; correct? 6 A I don't know that's correct actually. I 7 believe there are counterclaims now against -- oh, 8 against Ben-Zion; correct. 9 Q Oh. So there's no action, but there was a 10 threat of that action by Mr. Rosen; correct? 11 MR. ROSEN: Judge, I object to the 12 characterization of the word "threat". 13 THE COURT: That objection is overruled, 14 but Mr. Davidoff, I need some context here. 15 How is this relevant, because we have a limited 16 time this morning. How is this relevant to the 17 motion that's under consideration? 18 MR. DAVIDOFF: Sure, Your Honor. Our 19 position is if you look at Exhibit 2 there's 20 the representation that they are going to sue 21 Ben-Zion Alcalay in the Eastern District of New 22 York. I am highlighting it, Your Honor. 23 THE COURT: I see that. 24 MR. DAVIDOFF: Okay. In the same e-mail 25 back in January 2021 where they are claiming Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 16 1 that they are going to file a motion to dismiss 2 in this action. It is an issue of -- 3 THE COURT: I get that the e-mail was 4 relevant. What I don't get is this continued 5 cross-examination on what they are doing in New 6 York as being relevant at all on what I have to 7 decide. 8 MR. DAVIDOFF: Your Honor, it has 9 nothing -- respectfully, it has nothing -- it 10 is all about the state of mind; the intent, 11 when they knew things and -- 12 THE COURT: Respectfully, move on. I 13 don't find it relevant. Move on. 14 MR. DAVIDOFF: Okay. 15 BY MR. DAVIDOFF: 16 Q Mr. Dynkin, in January of this year 2021, 17 Mr. Rosen had authority to speak on your behalf with 18 respect to matters involving Ben-Zion Alcalay; 19 correct? 20 A Not necessarily all matters involving 21 Ben-Zion Alcalay. 22 Q Mr. Dynkin, which matters was Mr. Rosen 23 not authorized to speak on your behalf or the 24 company's behalf, meaning Atlas and DACS regarding 25 Ben-Zion Alcalay? Veritext Legal Solutions 212-267-6868 www.veritext.com 516-608-2400 FILED: NASSAU COUNTY CLERK 03/04/2022 05:48 PM INDEX NO. 602826/2022 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/04/2022 Page 17 1 MR. ROSEN: Objection. 2 THE COURT: Overruled. 3 THE WITNESS: I don't think that's the way 4 authority works. Authority is given; not given 5 plenipotentiary and then limited. I think your 6 characterization is completely off base. 7 BY MR. DAVIDOFF: 8 Q Mr. Dynkin, you previously testified that 9 you limited his authority -- 10 A No. 11 Q With respect to Mr. Alcalay, what was he 12 limited to representing you in? 13 A Saying whether or not he had authority to 14 act in a certain regard is not the same thing as 15 choosing to explicitly limit his authority. 16 THE COURT: Mr. Dynkin, I don't need a