On July 14, 2018 a
Motion-Secondary
was filed
involving a dispute between
Ellyn Berk,
Pamela Goldstein,
Paul Benjamin,
Tony Berk,
and
Houlihan Lawrence Inc.,
for Commercial Division
in the District Court of Westchester County.
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FILED: WESTCHESTER COUNTY CLERK 11/20/2018 11:34 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 348 RECEIVED NYSCEF: 11/20/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN,
ELLYN & TONY BERK,
and PAUL BENJAMIN, on behalf of AFFDIAVIT
themselves and all others similarly
Index No. 60767/2018
situated,
Plaintiffs, Hon. Linda S. Jamieson
v.
Motion Sequence 3
HOULIHAN/LAWRENCE INC.,
Defendant.
STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
DR. ELLYN BERK, being duly sworn, deposes and says:
1. I make this affidavit based on my personal knowledge and as an
administrator of the estate of my deceased mother, Winifred Berk. The Westchester
County Surrogate's Court Certificate of Appointment of Administrators certifying
administrator of mother's estate attached as Exhibit P-
my appointment as an my is
1, and the Receipt, Release, Refunding and Indemnification Agreement related to
the settlement of my mother's estate is attached as Exhibit P-2.
2. I have reviewed the October 30, 2018 affidavit of Geoffrey E. Berry
(Dkt. 338, the "Berry Affidavit") in support of Houlihan Lawrence's motion to
dismiss the Amended Complaint in this action and the forms attached to the Berry
Affidavit as Exhibits C and D (Dkt. 339 & 340).
1 of 3
FILED: WESTCHESTER COUNTY CLERK 11/20/2018 11:34 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 348 RECEIVED NYSCEF: 11/20/2018
3. I signed the form identified as Exhibit C to the Berry Affidavit on or
about February 20, 2014.
4. I did not, however, sign the undated form identified as Exhibit D to the
Berry Affidavit, nor did I authorize my signature to be affixed to that document.
5. The signatures that appear on the undated Exhibit D appear to have
been copied and pasted from Exhibit C without my knowledge or consent. The
signatures on Exhibits C and D appear to be identical and share unique and
distinguishing characteristics that indicate to me that Exhibit D is inauthentic.
6. I have no recollection or record of receiving Exhibit D to the Berry
Affidavit or any other version of the New York State Disclosure Form for Buyer and
"Gino"
Seller identifying David Calabrese and Biagio Bello as designated sales
agents.
Dr. Ellyn Berk
Sworn to before me this
1û_ day of Nove e , 2018
NO PUBLIC
NESTOR J ROSA
State
Public, of New York
Notary
Reg. No. 01RO6356610
in Bronx
Qualified County
Commission Expires 3, 2021
April
2
2 of 3
FILED: WESTCHESTER COUNTY CLERK 11/20/2018 11:34 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 348 RECEIVED NYSCEF: 11/20/2018
Certificate of Counsel
Pursuant to Commercial Division Rule 17
I, Jeremy Vest, counsel for Plaintiffs, hereby certify, pursuant to Commercial
Division Rule 17, that the word count for the foregoing document, excluding the
caption, table of contents, table of authorities, and signature block, is 267 words.
This document therefore complies with the rule, which limits briefs, memoranda,
affirmations, and affidavits to 7,000 words. I certify that this is the word count
Microsoft Word generated for this document.
Dated: November 20, 2018
Armonk, New York
BOIES SCHILLER FLEXNER LLP
By: /s/ Jeremy Vest
Jeremy Vest, Esq.
333 Main Street
Armonk, NY 10504
914 749 8200
Attorneys for Plaintiffs
3 of 3
Document Filed Date
November 20, 2018
Case Filing Date
July 14, 2018
Category
Commercial Division
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FILED: WESTCHESTER COUNTY CLERK 11/20/2018 11:34 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 348 RECEIVED NYSCEF: 11/20/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ELLYN & TONY BERK, and PAUL BENJAMIN, on behalf of AFFDIAVIT themselves and all others similarly Index No. 60767/2018 situated, Plaintiffs, Hon. Linda S. Jamieson v. Motion Sequence 3 HOULIHAN/LAWRENCE INC., Defendant. STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) DR. ELLYN BERK, being duly sworn, deposes and says: 1. I make this affidavit based on my personal knowledge and as an administrator of the estate of my deceased mother, Winifred Berk. The Westchester County Surrogate's Court Certificate of Appointment of Administrators certifying administrator of mother's estate attached as Exhibit P- my appointment as an my is 1, and the Receipt, Release, Refunding and Indemnification Agreement related to the settlement of my mother's estate is attached as Exhibit P-2. 2. I have reviewed the October 30, 2018 affidavit of Geoffrey E. Berry (Dkt. 338, the "Berry Affidavit") in support of Houlihan Lawrence's motion to dismiss the Amended Complaint in this action and the forms attached to the Berry Affidavit as Exhibits C and D (Dkt. 339 & 340). 1 of 3 FILED: WESTCHESTER COUNTY CLERK 11/20/2018 11:34 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 348 RECEIVED NYSCEF: 11/20/2018 3. I signed the form identified as Exhibit C to the Berry Affidavit on or about February 20, 2014. 4. I did not, however, sign the undated form identified as Exhibit D to the Berry Affidavit, nor did I authorize my signature to be affixed to that document. 5. The signatures that appear on the undated Exhibit D appear to have been copied and pasted from Exhibit C without my knowledge or consent. The signatures on Exhibits C and D appear to be identical and share unique and distinguishing characteristics that indicate to me that Exhibit D is inauthentic. 6. I have no recollection or record of receiving Exhibit D to the Berry Affidavit or any other version of the New York State Disclosure Form for Buyer and "Gino" Seller identifying David Calabrese and Biagio Bello as designated sales agents. Dr. Ellyn Berk Sworn to before me this 1û_ day of Nove e , 2018 NO PUBLIC NESTOR J ROSA State Public, of New York Notary Reg. No. 01RO6356610 in Bronx Qualified County Commission Expires 3, 2021 April 2 2 of 3 FILED: WESTCHESTER COUNTY CLERK 11/20/2018 11:34 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 348 RECEIVED NYSCEF: 11/20/2018 Certificate of Counsel Pursuant to Commercial Division Rule 17 I, Jeremy Vest, counsel for Plaintiffs, hereby certify, pursuant to Commercial Division Rule 17, that the word count for the foregoing document, excluding the caption, table of contents, table of authorities, and signature block, is 267 words. This document therefore complies with the rule, which limits briefs, memoranda, affirmations, and affidavits to 7,000 words. I certify that this is the word count Microsoft Word generated for this document. Dated: November 20, 2018 Armonk, New York BOIES SCHILLER FLEXNER LLP By: /s/ Jeremy Vest Jeremy Vest, Esq. 333 Main Street Armonk, NY 10504 914 749 8200 Attorneys for Plaintiffs 3 of 3