Preview
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
EXHIBIT E TO NIMETZ
AFFIRMATION
{01108945.docx.}
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
STATE OF NEW YORK
SURROGATE'S COURT: COUNTY OF KINGS
----------------------------------------x
PETITION TO COMPEL PRODUCTION OF WILL,
PURSUANT TO SCPA § 1401
MIRA HERTZ, File No.: 2019-4530
Deceased.
----------------------------------------x
March 5, 2020
HELD AT: Kings County Surrogate Court
2 Johnson Street
Brooklyn, New York 11201
APPEARANCES: IRMA K. NIMETZ, ESQ.
Attorney for Petitioner
JEFFREY P. GORAK, ESQ.
Attorney for Respondent
SAMUEL HERTZ,
Respondent
Electronically Recorded Proceeding transcribed by:
Valeri Wilson, transcriber
La Palabra Court Reporting
175 Main Street, Suite 515
White Plains, NY 10601
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 2
1 (11:38:04 a.m.)
2 MS. NIMETZ: As I said, there was a brief pause
3 in the tape as we checked the audio recording. Sam, if
4 you don't mind, I am going to refer to you as Sam today
5 just to make the record clear.
6 My name, again, Irma Nimetz, and I just
7 mentioned the proceeding. We're here to take testimony
8 from you pursuant to the order to attend under SCPA 1401,
9 file number 2019-4530, signed by Surrogate Thompson on
10 January 13th, 2020. And now someone is going to swear you
11 in.
12 THE CLERK: Could you raise your right hand? Do
13 you swear or affirm that the testimony that you're about
14 to give will be the truth?
15 MR. HERTZ: I do.
16 MS. NIMETZ: Okay. Would you, now that you've
17 been sworn in --
18 MR. GORAK: I'll just make my appearance very
19 quickly for the record. For the purposes of the clarity
20 of the record, my name is Jeffrey Gorak of Rivkin Radler
21 for the, for Samuel Hertz, the attendee.
22 MS. NIMETZ: Sam, would you please state your
23 full name and address for the record?
24 MR. HERTZ: Samuel Hertz, 24 Polhemus Place,
25 Brooklyn, New York, 11215.
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 3
1 MS. NIMETZ: Let me just give you a few ground
2 rules for today. If you could speak loudly since we are,
3 this is an audio recording, so we want to make sure that
4 we get all of your answers. And when I ask you questions,
5 since it is an audio recording, would you please be so
6 kind as to verbally answer each question, okay?
7 MR. HERTZ: Okay.
8 MS. NIMETZ: So a nod would not be sufficient,
9 understood?
10 MR. HERTZ: Understood.
11 MS. NIMETZ: Have you been deposed before, Mr.
12 Hertz?
13 MR. HERTZ: Yes, I have.
14 MS. NIMETZ: And what proceeding was that?
15 MR. HERTZ: Purely business matters, slip and
16 fall type of cases.
17 MS. NIMETZ: Would you state what your
18 occupation is, please?
19 MR. HERTZ: I manage apartment buildings.
20 MS. NIMETZ: And what, is it a name of a company
21 or companies?
22 MR. HERTZ: I have the name of a management
23 company where I work.
24 MS. NIMETZ: And what's the name of that
25 company?
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 4
1 MR. HERTZ: It's called Shyrazco (sic)
2 Management Company, Shyraz Management Company.
3 MS. NIMETZ: Could you spell that please for the
4 record?
5 MR. HERTZ: S-h-y-r-a-z Management, LLC, I
6 think.
7 MS. NIMETZ: And what is the address of that
8 company?
9 MR. HERTZ: 1060 Ocean Avenue, Brooklyn, New
10 York, 11226.
11 MS. NIMETZ: And are you involved in any other
12 corporations?
13 MR. GORAK: (Inaudible).
14 MS. NIMETZ: Sure, let me rephrase that. Do you
15 have any other employment?
16 MR. HERTZ: No, I do not.
17 MS. NIMETZ: Solely with the company that you
18 just named, correct?
19 MR. HERTZ: Correct.
20 MS. NIMETZ: And, Counsel, should we be marking
21 exhibits just between us? I'm going to show him a copy of
22 the order, and I'll mark it --
23 MR. GORAK: (Inaudible).
24 MS. NIMETZ: Excuse me?
25 MR. GORAK: Mark it (inaudible)?
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 5
1 MS. NIMETZ: Yeah. Just mark it, let's call it
2 P1. Is that fine?
3 MR. GORAK: Sure.
4 MS. NIMETZ: So we're marking as P1 a copy of
5 the order to attend under SCPA 1401. And I'll, I have to
6 throw it because you're across the table from, but can you
7 take a look at P1?
8 MR. HERTZ: I have looked at it briefly.
9 MS. NIMETZ: And are you appearing here today
10 pursuant to that order?
11 MR. HERTZ: I believe I am.
12 MS. NIMETZ: Thank you. Sam, what is your
13 mother's name?
14 MR. HERTZ: Mira Hertz.
15 MS. NIMETZ: And what is Mira Hertz's date of
16 birth?
17 MR. HERTZ: March 7th, 1922.
18 MS. NIMETZ: And did Mira Hertz pass away?
19 MR. HERTZ: Yes, she did.
20 MS. NIMETZ: And can you tell me her date of
21 death?
22 MR. HERTZ: April 27th, 2015.
23 MS. NIMETZ: And what was your mother's address
24 at the time she passed away?
25 MR. HERTZ: 35 Prospect Park West, Apartment 6D,
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 6
1 Brooklyn, New York, 11215.
2 MS. NIMETZ: And how long had your mother lived
3 at 35 Prospect Park West?
4 MR. HERTZ: Approximately three years.
5 MS. NIMETZ: And where did she live before that?
6 MR. HERTZ: She lived at, I think, 121 Sterling
7 Place.
8 MS. NIMETZ: Is Sterling Place in Brooklyn as
9 well?
10 MR. HERTZ: Yes. That's Brooklyn 11, I think
11 the zip code is different. I don't remember the exact
12 (inaudible). It's the same neighborhood, but I think the,
13 I think the building is 121, but the zip code might be
14 different.
15 MS. NIMETZ: And how long did your mother live
16 at 121 Sterling Place in Brooklyn?
17 MR. HERTZ: I think approximately seven years,
18 six, anywhere between six, seven years, I think.
19 MS. NIMETZ: And how long did your mother live
20 in the United States?
21 MR. HERTZ: Since 1967, so over 50 years,
22 approximately 50 years.
23 MS. NIMETZ: What was your father's name?
24 MR. HERTZ: Wolfe (ph) Hertz.
25 MS. NIMETZ: And when was your father born, and
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 7
1 when did he pass away?
2 MR. HERTZ: I believe he was born September 8th,
3 1915, and he died March 23rd, 1992.
4 MS. NIMETZ: And did your father have a will
5 when he passed away?
6 MR. HERTZ: I don’t actually remember. It's
7 possible. I don't remember.
8 MS. NIMETZ: Do you know if you were named as an
9 executor under your father's will?
10 MR. HERTZ: I believe, not, no, I don't, well, I
11 know when just when we dealt, when he passed away we went
12 to an attorney, and my mother was alive, and simply filed
13 some papers, and that was that. There was no, I don't
14 remember that, I don't recall a will coming, being, coming
15 up. I can't, I don't remember for sure. I --
16 MS. NIMETZ: What was the name of the attorney
17 for your father?
18 MR. HERTZ: It's not an attorney for my father.
19 This is the attorney that handled the matter after he
20 passed away. I don't remember his name. It was someplace
21 in Union Square. I forgot the exact address, but it was
22 someplace in Manhattan in Union Square.
23 MS. NIMETZ: And do you believe the attorney in
24 Union Square drafted your father's will?
25 MR. HERTZ: No, I don't think so.
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 8
1 MS. NIMETZ: Do you know who drafted your
2 father's will?
3 MR. HERTZ: I don't recall my father having a
4 will.
5 MS. NIMETZ: At the time that your mother passed
6 away, where did she die?
7 MR. HERTZ: We were in Brooklyn Methodist
8 Hospital.
9 MS. NIMETZ: She died at Methodist Hospital in
10 Brooklyn; is that your --
11 MR. HERTZ: Correct.
12 MR. NIMETZ: -- testimony?
13 MR. HERTZ: Yes.
14 MS. NIMETZ: And at the time she passed away,
15 well, let me rephrase that. How many children does, did
16 your mother have?
17 MR. HERTZ: Two.
18 MS. NIMETZ: And can you tell me the names of
19 your mother's children?
20 MR. HERTZ: Samuel Hertz and Joseph Hertz.
21 MS. NIMETZ: And both you and Joseph Hertz, your
22 mother was Mira Hertz; is that correct?
23 MR. HERTZ: Correct.
24 MS. NIMETZ: And your father was Wolfe Hertz?
25 MR. HERTZ: Correct.
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 9
1 MS. NIMETZ: And were there any other children
2 of that marriage of --
3 MR. HERTZ: No, there were not.
4 MS. NIMETZ: Did your mother, Mira Hertz, have a
5 will when she passed away?
6 MR. HERTZ: Yes, she did.
7 MS. NIMETZ: And what was the date of the will
8 when your mother passed away?
9 MR. HERTZ: I don't recall exactly the date, but
10 the last time I looked at it I believe it was some time in
11 November of 2008 if I recall correctly.
12 MS. NIMETZ: Do you know if it was, or is your,
13 do you know the day of the date in November?
14 MR. HERTZ: Not off the top of my head, no, not
15 from memory, no.
16 MS. NIMETZ: Showing you, Sam, what has been
17 marked as P2. And can you tell me what this document is?
18 I'm sorry.
19 MR. HERTZ: Looking at it briefly, it would seem
20 to be the will of my mother, Mira Hertz.
21 MS. NIMETZ: And what is the date of the will,
22 P2?
23 MR. HERTZ: It is dated 26th day of November
24 2008.
25 MS. NIMETZ: Sam, now, so let me just put on the
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 10
1 record that when I am going to be asking you questions
2 about your mother's will, if I don't otherwise state the
3 date, your mother's will is going to refer to P2 which is
4 dated November 26, 2008, understood?
5 MR. HERTZ: Yes.
6 MS. NIMETZ: Is that the will you were referring
7 to? Is that, let me rephrase that. Is it your testimony
8 that that was your mother's Last Will and Testament when
9 she died?
10 MR. HERTZ: Without reading carefully through
11 it, just looking at it, it would seem to be, yes, it looks
12 like it.
13 MS. NIMETZ: And let the record reflect and let
14 me ask you this question, that is not an original will,
15 correct?
16 MR. HERTZ: This seems to be a copy, yes.
17 MS. NIMETZ: Did your mother have any other
18 wills prior to the copy of the will I just gave you dated
19 November 26, 2008?
20 MR. GORAK: You know, I, I'm sorry. I have to
21 object. The order says that he's to answer any questions
22 related to the whereabouts of an instrument dated November
23 26, 2008.
24 MS. NIMETZ: That --
25 MR. GORAK: That doesn't fall within the scope
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 11
1 of the order. Prior testamentary instruments?
2 MS. NIMETZ: I --
3 MR. GORAK: We're here to find, we're here to
4 locate the whereabouts of this instrument.
5 MS. NIMETZ: Fine. I simply am asking if this
6 is what he's purporting to be the Last Will and Testament
7 of Mira Hertz.
8 MR. GORAK: And I think that he did.
9 MR. NIMETZ: And my question was, do you know if
10 there were any other wills that your mother had?
11 MR. HERTZ: I don't know with certainty that
12 there were other wills. I know that over many years many
13 things were discussed, but I don’t know, like nothing at
14 the moment comes to mind that, of a different will.
15 MS. NIMETZ: When you say many things were
16 discussed, what are you referring to?
17 MR. HERTZ: After my father passed away, my
18 mother would occasionally discuss her possible will
19 update, but it was just never, I, there was nothing that
20 comes to mind right now that was done in that regard.
21 MS. NIMETZ: When your father passed away, do
22 you know if your mother had a will at that time?
23 MR. HERTZ: I don't know if they had a will at
24 that time. I know, I seem to recall, I'm trying to recall
25 that at the time we were speaking about insurance, second
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 12
1 to die, possibly getting a will, occasionally went to an
2 attorney and then nothing would come of it for the next
3 year or two or three, some initial discussions, and this
4 was sort of a pattern that happened over the years.
5 But years would go by, then the topic would come
6 up again for some reason and again you might be given a
7 different attorney, maybe speak to them, and then again
8 not be discussed, and that was the pattern. That's why I
9 don't remember if possibly anything was ever written down
10 or --
11 MS. NIMETZ: When you say you discussed with
12 attorneys, what attorney are you referring to?
13 MR. HERTZ: You know, I don’t even remember at
14 the moment. We had various people we've dealt with over
15 the years, and I know, I'm just trying to remember. I --
16 MS. NIMETZ: Take your time.
17 MR. HERTZ: Yeah, you know, I'm saying I don't
18 remember anything definitively. I remember that over the
19 years things would be discussed of possibly we need a
20 will, we need to do something in terms of estate planning,
21 and again I honestly don’t remember what, any other will
22 or document that, it never came to anything where I could
23 say oh, we have a will, we've planned it out, it's been
24 decided, it's been figured out, it's been, these things
25 happened sort of, again over the years. Just, there was
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 13
1 no concerted effort to do an estate planning and then the
2 will until we worked with Mr., with Rivkin Radler.
3 MS. NIMETZ: When you say we discussed, who is
4 having these discussions?
5 MR. HERTZ: My mother and I, possibly my
6 brother. Again, this is over the course of 25 years.
7 MS. NIMETZ: Starting when?
8 MR. HERTZ: Possibly around 9, the 1990s, you
9 know before my father passed away. It wasn't part of our
10 thinking of getting a will. Some attorney might have
11 mentioned you might want to look into getting a will and
12 so, you know, that’s, it was never, there was never, as
13 far as I recall, never any set plan, something definitive
14 drawn up that, that's about it, yeah.
15 MS. NIMETZ: Do you remember how many
16 discussions you had?
17 MR. HERTZ: No, I do not.
18 MS. NIMETZ: And do you remember if you had
19 discussions with your mother alone about a will?
20 MR. HERTZ: I would say that generally it was
21 discussed, the three of us together discussed it.
22 MS. NIMETZ: And who are the three of us?
23 MR. HERTZ: My brother, my mother and I.
24 MS. NIMETZ: And when the, Exhibit P2, the copy
25 of a paper writing in front of you dated November 26,
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 14
1 2008, what was the law firm who drafted that will.
2 MR. HERTZ: This is from Rivkin Radler.
3 MS. NIMETZ: And did you deal with a particular
4 attorney from Rivkin Radler?
5 MR. HERTZ: Yes. It was Scott Eisenmesser.
6 MS. NIMETZ: And did Scott Eisenmesser or any
7 attorney at Rivkin Radler represent your mother prior to
8 drafting P2?
9 MR. GORAK: Objection. In what way do these
10 questions relate to the whereabouts of the current will?
11 This is --
12 MS. NIMETZ: You can object as to form, but --
13 MR. GORAK: Then I'm looking --
14 MS. NIMETZ: -- these are not --
15 MR. GORAK: -- for a ruling.
16 MS. NIMETZ: You got to be kidding. I'm asking
17 him --
18 MR. GORAK: About the contents --
19 MS. NIMETZ: -- a question --
20 MR. GORAK: -- of a will.
21 MS. NIMETZ: Yeah --
22 MR. GORAK: We're concerned --
23 MS. NIMETZ: -- and I'm asking him who drafted
24 it. I'm allowed to ask that question.
25 MR. GORAK: I'll let it go a little while
La Palabra Court Reporting LLC
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021
M. HERTZ - 03/05/2020 15
1 longer. You can answer the question (inaudible).
2 MS. NIMETZ: Well, let me rephrase it. You said
3 that Scott Eisenmesser, an attorney at Rivkin Radler,
4 drafted the will; is that correct?
5 MR. HERTZ: Correct.
6 MS. NIMETZ: And had your mother been a client
7 of Mr. Eisenmesser prior to this will?
8 MR. GORAK: I would just like the record to
9 reflect my objection to the question. You can answer.
10 MR. HERTZ: Can I answer? Yes. My mother and I
11 were clients of Rivkin Radler prior to the, to writing up
12 the will.
13 MS. NIMETZ: When you say your mother and I,
14 what do you mean by that?
15 MR. HE
Preview
FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 EXHIBIT E TO NIMETZ AFFIRMATION {01108945.docx.} FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 STATE OF NEW YORK SURROGATE'S COURT: COUNTY OF KINGS ----------------------------------------x PETITION TO COMPEL PRODUCTION OF WILL, PURSUANT TO SCPA § 1401 MIRA HERTZ, File No.: 2019-4530 Deceased. ----------------------------------------x March 5, 2020 HELD AT: Kings County Surrogate Court 2 Johnson Street Brooklyn, New York 11201 APPEARANCES: IRMA K. NIMETZ, ESQ. Attorney for Petitioner JEFFREY P. GORAK, ESQ. Attorney for Respondent SAMUEL HERTZ, Respondent Electronically Recorded Proceeding transcribed by: Valeri Wilson, transcriber La Palabra Court Reporting 175 Main Street, Suite 515 White Plains, NY 10601 La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 2 1 (11:38:04 a.m.) 2 MS. NIMETZ: As I said, there was a brief pause 3 in the tape as we checked the audio recording. Sam, if 4 you don't mind, I am going to refer to you as Sam today 5 just to make the record clear. 6 My name, again, Irma Nimetz, and I just 7 mentioned the proceeding. We're here to take testimony 8 from you pursuant to the order to attend under SCPA 1401, 9 file number 2019-4530, signed by Surrogate Thompson on 10 January 13th, 2020. And now someone is going to swear you 11 in. 12 THE CLERK: Could you raise your right hand? Do 13 you swear or affirm that the testimony that you're about 14 to give will be the truth? 15 MR. HERTZ: I do. 16 MS. NIMETZ: Okay. Would you, now that you've 17 been sworn in -- 18 MR. GORAK: I'll just make my appearance very 19 quickly for the record. For the purposes of the clarity 20 of the record, my name is Jeffrey Gorak of Rivkin Radler 21 for the, for Samuel Hertz, the attendee. 22 MS. NIMETZ: Sam, would you please state your 23 full name and address for the record? 24 MR. HERTZ: Samuel Hertz, 24 Polhemus Place, 25 Brooklyn, New York, 11215. La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 3 1 MS. NIMETZ: Let me just give you a few ground 2 rules for today. If you could speak loudly since we are, 3 this is an audio recording, so we want to make sure that 4 we get all of your answers. And when I ask you questions, 5 since it is an audio recording, would you please be so 6 kind as to verbally answer each question, okay? 7 MR. HERTZ: Okay. 8 MS. NIMETZ: So a nod would not be sufficient, 9 understood? 10 MR. HERTZ: Understood. 11 MS. NIMETZ: Have you been deposed before, Mr. 12 Hertz? 13 MR. HERTZ: Yes, I have. 14 MS. NIMETZ: And what proceeding was that? 15 MR. HERTZ: Purely business matters, slip and 16 fall type of cases. 17 MS. NIMETZ: Would you state what your 18 occupation is, please? 19 MR. HERTZ: I manage apartment buildings. 20 MS. NIMETZ: And what, is it a name of a company 21 or companies? 22 MR. HERTZ: I have the name of a management 23 company where I work. 24 MS. NIMETZ: And what's the name of that 25 company? La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 4 1 MR. HERTZ: It's called Shyrazco (sic) 2 Management Company, Shyraz Management Company. 3 MS. NIMETZ: Could you spell that please for the 4 record? 5 MR. HERTZ: S-h-y-r-a-z Management, LLC, I 6 think. 7 MS. NIMETZ: And what is the address of that 8 company? 9 MR. HERTZ: 1060 Ocean Avenue, Brooklyn, New 10 York, 11226. 11 MS. NIMETZ: And are you involved in any other 12 corporations? 13 MR. GORAK: (Inaudible). 14 MS. NIMETZ: Sure, let me rephrase that. Do you 15 have any other employment? 16 MR. HERTZ: No, I do not. 17 MS. NIMETZ: Solely with the company that you 18 just named, correct? 19 MR. HERTZ: Correct. 20 MS. NIMETZ: And, Counsel, should we be marking 21 exhibits just between us? I'm going to show him a copy of 22 the order, and I'll mark it -- 23 MR. GORAK: (Inaudible). 24 MS. NIMETZ: Excuse me? 25 MR. GORAK: Mark it (inaudible)? La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 5 1 MS. NIMETZ: Yeah. Just mark it, let's call it 2 P1. Is that fine? 3 MR. GORAK: Sure. 4 MS. NIMETZ: So we're marking as P1 a copy of 5 the order to attend under SCPA 1401. And I'll, I have to 6 throw it because you're across the table from, but can you 7 take a look at P1? 8 MR. HERTZ: I have looked at it briefly. 9 MS. NIMETZ: And are you appearing here today 10 pursuant to that order? 11 MR. HERTZ: I believe I am. 12 MS. NIMETZ: Thank you. Sam, what is your 13 mother's name? 14 MR. HERTZ: Mira Hertz. 15 MS. NIMETZ: And what is Mira Hertz's date of 16 birth? 17 MR. HERTZ: March 7th, 1922. 18 MS. NIMETZ: And did Mira Hertz pass away? 19 MR. HERTZ: Yes, she did. 20 MS. NIMETZ: And can you tell me her date of 21 death? 22 MR. HERTZ: April 27th, 2015. 23 MS. NIMETZ: And what was your mother's address 24 at the time she passed away? 25 MR. HERTZ: 35 Prospect Park West, Apartment 6D, La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 6 1 Brooklyn, New York, 11215. 2 MS. NIMETZ: And how long had your mother lived 3 at 35 Prospect Park West? 4 MR. HERTZ: Approximately three years. 5 MS. NIMETZ: And where did she live before that? 6 MR. HERTZ: She lived at, I think, 121 Sterling 7 Place. 8 MS. NIMETZ: Is Sterling Place in Brooklyn as 9 well? 10 MR. HERTZ: Yes. That's Brooklyn 11, I think 11 the zip code is different. I don't remember the exact 12 (inaudible). It's the same neighborhood, but I think the, 13 I think the building is 121, but the zip code might be 14 different. 15 MS. NIMETZ: And how long did your mother live 16 at 121 Sterling Place in Brooklyn? 17 MR. HERTZ: I think approximately seven years, 18 six, anywhere between six, seven years, I think. 19 MS. NIMETZ: And how long did your mother live 20 in the United States? 21 MR. HERTZ: Since 1967, so over 50 years, 22 approximately 50 years. 23 MS. NIMETZ: What was your father's name? 24 MR. HERTZ: Wolfe (ph) Hertz. 25 MS. NIMETZ: And when was your father born, and La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 7 1 when did he pass away? 2 MR. HERTZ: I believe he was born September 8th, 3 1915, and he died March 23rd, 1992. 4 MS. NIMETZ: And did your father have a will 5 when he passed away? 6 MR. HERTZ: I don’t actually remember. It's 7 possible. I don't remember. 8 MS. NIMETZ: Do you know if you were named as an 9 executor under your father's will? 10 MR. HERTZ: I believe, not, no, I don't, well, I 11 know when just when we dealt, when he passed away we went 12 to an attorney, and my mother was alive, and simply filed 13 some papers, and that was that. There was no, I don't 14 remember that, I don't recall a will coming, being, coming 15 up. I can't, I don't remember for sure. I -- 16 MS. NIMETZ: What was the name of the attorney 17 for your father? 18 MR. HERTZ: It's not an attorney for my father. 19 This is the attorney that handled the matter after he 20 passed away. I don't remember his name. It was someplace 21 in Union Square. I forgot the exact address, but it was 22 someplace in Manhattan in Union Square. 23 MS. NIMETZ: And do you believe the attorney in 24 Union Square drafted your father's will? 25 MR. HERTZ: No, I don't think so. La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 8 1 MS. NIMETZ: Do you know who drafted your 2 father's will? 3 MR. HERTZ: I don't recall my father having a 4 will. 5 MS. NIMETZ: At the time that your mother passed 6 away, where did she die? 7 MR. HERTZ: We were in Brooklyn Methodist 8 Hospital. 9 MS. NIMETZ: She died at Methodist Hospital in 10 Brooklyn; is that your -- 11 MR. HERTZ: Correct. 12 MR. NIMETZ: -- testimony? 13 MR. HERTZ: Yes. 14 MS. NIMETZ: And at the time she passed away, 15 well, let me rephrase that. How many children does, did 16 your mother have? 17 MR. HERTZ: Two. 18 MS. NIMETZ: And can you tell me the names of 19 your mother's children? 20 MR. HERTZ: Samuel Hertz and Joseph Hertz. 21 MS. NIMETZ: And both you and Joseph Hertz, your 22 mother was Mira Hertz; is that correct? 23 MR. HERTZ: Correct. 24 MS. NIMETZ: And your father was Wolfe Hertz? 25 MR. HERTZ: Correct. La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 9 1 MS. NIMETZ: And were there any other children 2 of that marriage of -- 3 MR. HERTZ: No, there were not. 4 MS. NIMETZ: Did your mother, Mira Hertz, have a 5 will when she passed away? 6 MR. HERTZ: Yes, she did. 7 MS. NIMETZ: And what was the date of the will 8 when your mother passed away? 9 MR. HERTZ: I don't recall exactly the date, but 10 the last time I looked at it I believe it was some time in 11 November of 2008 if I recall correctly. 12 MS. NIMETZ: Do you know if it was, or is your, 13 do you know the day of the date in November? 14 MR. HERTZ: Not off the top of my head, no, not 15 from memory, no. 16 MS. NIMETZ: Showing you, Sam, what has been 17 marked as P2. And can you tell me what this document is? 18 I'm sorry. 19 MR. HERTZ: Looking at it briefly, it would seem 20 to be the will of my mother, Mira Hertz. 21 MS. NIMETZ: And what is the date of the will, 22 P2? 23 MR. HERTZ: It is dated 26th day of November 24 2008. 25 MS. NIMETZ: Sam, now, so let me just put on the La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 10 1 record that when I am going to be asking you questions 2 about your mother's will, if I don't otherwise state the 3 date, your mother's will is going to refer to P2 which is 4 dated November 26, 2008, understood? 5 MR. HERTZ: Yes. 6 MS. NIMETZ: Is that the will you were referring 7 to? Is that, let me rephrase that. Is it your testimony 8 that that was your mother's Last Will and Testament when 9 she died? 10 MR. HERTZ: Without reading carefully through 11 it, just looking at it, it would seem to be, yes, it looks 12 like it. 13 MS. NIMETZ: And let the record reflect and let 14 me ask you this question, that is not an original will, 15 correct? 16 MR. HERTZ: This seems to be a copy, yes. 17 MS. NIMETZ: Did your mother have any other 18 wills prior to the copy of the will I just gave you dated 19 November 26, 2008? 20 MR. GORAK: You know, I, I'm sorry. I have to 21 object. The order says that he's to answer any questions 22 related to the whereabouts of an instrument dated November 23 26, 2008. 24 MS. NIMETZ: That -- 25 MR. GORAK: That doesn't fall within the scope La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 11 1 of the order. Prior testamentary instruments? 2 MS. NIMETZ: I -- 3 MR. GORAK: We're here to find, we're here to 4 locate the whereabouts of this instrument. 5 MS. NIMETZ: Fine. I simply am asking if this 6 is what he's purporting to be the Last Will and Testament 7 of Mira Hertz. 8 MR. GORAK: And I think that he did. 9 MR. NIMETZ: And my question was, do you know if 10 there were any other wills that your mother had? 11 MR. HERTZ: I don't know with certainty that 12 there were other wills. I know that over many years many 13 things were discussed, but I don’t know, like nothing at 14 the moment comes to mind that, of a different will. 15 MS. NIMETZ: When you say many things were 16 discussed, what are you referring to? 17 MR. HERTZ: After my father passed away, my 18 mother would occasionally discuss her possible will 19 update, but it was just never, I, there was nothing that 20 comes to mind right now that was done in that regard. 21 MS. NIMETZ: When your father passed away, do 22 you know if your mother had a will at that time? 23 MR. HERTZ: I don't know if they had a will at 24 that time. I know, I seem to recall, I'm trying to recall 25 that at the time we were speaking about insurance, second La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 12 1 to die, possibly getting a will, occasionally went to an 2 attorney and then nothing would come of it for the next 3 year or two or three, some initial discussions, and this 4 was sort of a pattern that happened over the years. 5 But years would go by, then the topic would come 6 up again for some reason and again you might be given a 7 different attorney, maybe speak to them, and then again 8 not be discussed, and that was the pattern. That's why I 9 don't remember if possibly anything was ever written down 10 or -- 11 MS. NIMETZ: When you say you discussed with 12 attorneys, what attorney are you referring to? 13 MR. HERTZ: You know, I don’t even remember at 14 the moment. We had various people we've dealt with over 15 the years, and I know, I'm just trying to remember. I -- 16 MS. NIMETZ: Take your time. 17 MR. HERTZ: Yeah, you know, I'm saying I don't 18 remember anything definitively. I remember that over the 19 years things would be discussed of possibly we need a 20 will, we need to do something in terms of estate planning, 21 and again I honestly don’t remember what, any other will 22 or document that, it never came to anything where I could 23 say oh, we have a will, we've planned it out, it's been 24 decided, it's been figured out, it's been, these things 25 happened sort of, again over the years. Just, there was La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 13 1 no concerted effort to do an estate planning and then the 2 will until we worked with Mr., with Rivkin Radler. 3 MS. NIMETZ: When you say we discussed, who is 4 having these discussions? 5 MR. HERTZ: My mother and I, possibly my 6 brother. Again, this is over the course of 25 years. 7 MS. NIMETZ: Starting when? 8 MR. HERTZ: Possibly around 9, the 1990s, you 9 know before my father passed away. It wasn't part of our 10 thinking of getting a will. Some attorney might have 11 mentioned you might want to look into getting a will and 12 so, you know, that’s, it was never, there was never, as 13 far as I recall, never any set plan, something definitive 14 drawn up that, that's about it, yeah. 15 MS. NIMETZ: Do you remember how many 16 discussions you had? 17 MR. HERTZ: No, I do not. 18 MS. NIMETZ: And do you remember if you had 19 discussions with your mother alone about a will? 20 MR. HERTZ: I would say that generally it was 21 discussed, the three of us together discussed it. 22 MS. NIMETZ: And who are the three of us? 23 MR. HERTZ: My brother, my mother and I. 24 MS. NIMETZ: And when the, Exhibit P2, the copy 25 of a paper writing in front of you dated November 26, La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 14 1 2008, what was the law firm who drafted that will. 2 MR. HERTZ: This is from Rivkin Radler. 3 MS. NIMETZ: And did you deal with a particular 4 attorney from Rivkin Radler? 5 MR. HERTZ: Yes. It was Scott Eisenmesser. 6 MS. NIMETZ: And did Scott Eisenmesser or any 7 attorney at Rivkin Radler represent your mother prior to 8 drafting P2? 9 MR. GORAK: Objection. In what way do these 10 questions relate to the whereabouts of the current will? 11 This is -- 12 MS. NIMETZ: You can object as to form, but -- 13 MR. GORAK: Then I'm looking -- 14 MS. NIMETZ: -- these are not -- 15 MR. GORAK: -- for a ruling. 16 MS. NIMETZ: You got to be kidding. I'm asking 17 him -- 18 MR. GORAK: About the contents -- 19 MS. NIMETZ: -- a question -- 20 MR. GORAK: -- of a will. 21 MS. NIMETZ: Yeah -- 22 MR. GORAK: We're concerned -- 23 MS. NIMETZ: -- and I'm asking him who drafted 24 it. I'm allowed to ask that question. 25 MR. GORAK: I'll let it go a little while La Palabra Court Reporting LLC FILED: KINGS COUNTY CLERK 03/30/2021 06:35 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/30/2021 M. HERTZ - 03/05/2020 15 1 longer. You can answer the question (inaudible). 2 MS. NIMETZ: Well, let me rephrase it. You said 3 that Scott Eisenmesser, an attorney at Rivkin Radler, 4 drafted the will; is that correct? 5 MR. HERTZ: Correct. 6 MS. NIMETZ: And had your mother been a client 7 of Mr. Eisenmesser prior to this will? 8 MR. GORAK: I would just like the record to 9 reflect my objection to the question. You can answer. 10 MR. HERTZ: Can I answer? Yes. My mother and I 11 were clients of Rivkin Radler prior to the, to writing up 12 the will. 13 MS. NIMETZ: When you say your mother and I, 14 what do you mean by that? 15 MR. HE