Preview
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
Exhibit L
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------x
NORMA KNOPF and MICHAEL KNOPF,
Plaintiffs,
-against-
FRANK M. ESPOSITO, DORSEY & WHITNEY,
LLP, NATHANIEL H. AKERMAN,
EDWARD S. FELDMAN and
MICHAEL HAYDEN SANFORD,
Defendants.
Case No: 17 Civ. 5833 (DLC)(SN)
--------------------------------------x
February 10, 2021
11:02 a.m.
Remote Deposition of
EDWARD S. FELDMAN, pursuant to Order,
before CINDY A. AFANADOR, Certified Shorthand
Reporter, Registered Professional Reporter,
Certified Realtime Reporter, Registered Merit
Reporter and Notary Public of the State of
New York.
CINDY AFANADOR COURT REPORTING, INC.
516-491-2694
www.cindycourtreporting.com
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
2
A P P E A R A N C E S:
BERRY LAW PLLC
Attorneys for Plaintiffs
745 Fifth Avenue, 5th Floor
New York, New York 10151
BY: ERIC BERRY, ESQ.
berrylawpllc@gmail.com
(212) 355-0777
(via videoconference)
PATTERSON BELKNAP, LLP
Attorneys for Defendants Dorsey & Whitney, LLP
and Nathaniel H. Akerman
1133 Sixth Avenue
New York, New York 10036
NOT PRESENT
DORSEY & WHITNEY LLP
Attorneys for Defendant Dorsey & Whitney, LLP
51 West 52nd Street
New York, New York 10019
BY: ANTHONY BADARACCO, ESQ.
badaracco.anthony@dorsey.com
(609) 230-2970
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
3
1
2
3 PETER LANCASTER, ESQ.
4 In-house counsel for Dorsey & Whitney, LLP
5 50 South 6th Street, Suite 2200
6 Minneapolis, Minnesota 55402
7 lancaster.peter@dorsey.com
8 (via videoconference)
9
10 NADEL & CIARLO, P.C.
11 Attorneys for Non-Party Witness Michael
12 Phillips
13 527 Madison Avenue, 7th Floor
14 New York, New York 10022
15 BY: ADAM HANAN, ESQ.
16 ahanan@ncesq.com
17 - AND -
18 LORRAINE NADEL, ESQ.
19 lnadel@ncesq.com
20 (212) 317-9500
21 (via videoconference)
22
23 ALSO PRESENT:
24 Frank M. Esposito
25 Nathaniel H. Akerman
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
4
1
2 IT IS HEREBY STIPULATED AND
3 AGREED by and between the attorneys
4 for the respective parties herein,
5 that the filing, sealing and
6 certification of the within deposition
7 be waived.
8 IT IS FURTHER STIPULATED AND
9 AGREED that all objections, except
10 as to the form of the question,
11 shall be reserved to the time of the
12 trial.
13 IT IS FURTHER STIPULATED AND
14 AGREED that the within deposition
15 may be sworn to and signed before
16 any officer authorized to administer
17 an oath with the same force and
18 effect as if signed and sworn to
19 before the Court.
20
21
22 - oOo -
23
24
25
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
5
1 Edward S. Feldman
2 E D W A R D S. F E L D M A N, called as a
3 witness, having been duly sworn by a
4 Notary Public, was examined and
5 testified as follows:
6
7 THE COURT REPORTER: Could you
8 please state your name and address for
9 the record.
10 THE WITNESS: Edward S. Feldman.
11 570 Grand Avenue, Englewood, New Jersey
12 07631.
13 EXAMINATION BY
14 MR. BERRY:
15 Q. Mr. Feldman, how are you today?
16 A. Fine.
17 Q. Mr. Feldman, do you recall being
18 deposed in the Knopf v. Phillips case on
19 June 28th -- I'm sorry, June 29th of 2017?
20 A. Is that the date? I thought it
21 was June 26th, but okay, yes, I recall the
22 deposition.
23 Q. Thank you.
24 Mr. Feldman, your audio is not
25 great.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
6
1 Edward S. Feldman
2 Can you --
3 A. Is that better?
4 Q. That's a little bit better.
5 Thank you.
6 A. I'll get a little closer.
7 Q. Thanks.
8 Do you see -- hold on for one
9 second.
10 Mr. Feldman, I'm screen sharing
11 the first page of your deposition in the
12 Knopf v. Phillips case, which has been
13 identified as Exhibit 105.
14 Can you -- do you see the first
15 page?
16 A. Yes, I do.
17 Q. I'm directing your attention to
18 your prior testimony begins on page 34 at the
19 highlighted material.
20 A. Yes.
21 Q. Can you read from page 34 line 18
22 to page -- to the end of page 34 starting at
23 line 18, which I'm highlighting. Read it to
24 yourself.
25 A. (Witness reviewing.)
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
7
1 Edward S. Feldman
2 Okay.
3 Q. Do you see that you state in
4 your answer "I was asking her," meaning
5 Ms. Ringel, "whether there was any restraints.
6 I didn't go into the whole lawsuit or
7 Appellate Division, because from what I had
8 gathered it was very convoluted and
9 complicated in multiple motions."
10 What did you mean by "convoluted
11 and complicated"?
12 A. I don't remember what I said that
13 long ago.
14 Q. But --
15 A. I don't remember.
16 Q. Again, your audibility is not
17 great.
18 What -- okay, but regardless --
19 A. I don't recall.
20 Q. Pardon?
21 A. I don't recall.
22 Q. Okay.
23 Did you mean that Mr. Akerman's
24 explanation to Ms. Ringel had been a
25 complicated and convoluted explanation?
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
8
1 Edward S. Feldman
2 A. I just told you I don't recall.
3 MR. BADARACCO: Objection to
4 form.
5 Q. Well, do you remember thinking
6 that something was complicated and convoluted
7 when you spoke to Ms. Ringel on January 12,
8 2016?
9 A. I don't recall four and a half
10 years ago. I don't recall what I was
11 thinking.
12 Q. Isn't it correct that you are
13 saying that the different orders that
14 Mr. Akerman was speaking to Ms. Ringel about
15 presented a complicated and convoluted
16 situation in your view?
17 MR. ESPOSITO: Objection.
18 This is Frank Esposito, Cindy.
19 Thank you.
20 THE COURT REPORTER: Thank you.
21 A. I don't recall what that was
22 about.
23 Q. You don't recall that the call
24 Mr. Akerman placed was about three orders
25 dated October 22, 2015, November 12, 2015 and
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
9
1 Edward S. Feldman
2 December 29, 2015?
3 MR. BADARACCO: Objection to
4 form, argumentative and assumes facts
5 not in evidence.
6 A. I agree. I'm objecting to that.
7 You are making up testimony as it goes along.
8 Q. Okay, Mr. Feldman, I want you to
9 read out loud your answer to my question that
10 begins on page 34 at line 18.
11 My question is: "You are asking
12 her how many different orders?"
13 Then there is the words
14 "Mr. Ackerman," which I don't understand.
15 Please read your answer from line
16 20 to 25 into the record.
17 A. "I was asking her whether there"
18 were -- "there was," probably should be were,
19 "any restraints." I didn't go into the whole
20 lawsuit or Appellate Division, because from
21 what I had gathered, it was a very convoluted
22 and complicated in multiple motions. I had a
23 very simple question, can I close."
24 Q. Were you giving truthful
25 testimony when you gave that answer on
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
10
1 Edward S. Feldman
2 June 29th of 2017?
3 A. Yes.
4 Q. Thank you.
5 Mr. Feldman, I'm screen sharing
6 what's been previously marked as Exhibit 102,
7 which is Ms. Ringel's deposition from
8 August 15, 2017 in the Phillips case.
9 Can you see it?
10 A. Yes, I can.
11 Q. Can you read the highlighted
12 testimony on page 44 to yourself.
13 A. (Witness reviewing.)
14 Q. You should read from line 11 on
15 page 44 to line 4 on page 45 and when you want
16 me to page forward, just say so.
17 A. (Witness reviewing.)
18 Q. Read it to yourself.
19 A. I'm doing that.
20 Q. Okay. Thanks.
21 You want me to page forward?
22 A. Wait until I tell you, please.
23 Q. Okay.
24 A. You went too fast.
25 Q. I'm sorry. I misunderstood. I
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
11
1 Edward S. Feldman
2 thought you were asking me to page forward.
3 Your audibility is not great. Please tell me
4 when to page forward.
5 A. (Witness reviewing.)
6 Next page, please.
7 Q. Thank you.
8 A. (Witness reviewing.)
9 Okay.
10 Q. Do you see Ms. Ringel's testimony
11 that when you and Mr. Akerman called, you
12 asked who -- you asked whether she was
13 familiar with the order. I'm highlighting the
14 phrase "familiar with the order."
15 A. Yes.
16 Q. Between you and Mr. Akerman, who
17 asked Ms. Ringel whether she was familiar with
18 the order?
19 A. I have no idea. I do not recall
20 four and a half years ago who said what, where
21 and how.
22 Q. Is Ms. Ringel testifying
23 truthfully when she said that she was asked
24 whether she was familiar with the order?
25 MR. BADARACCO: Objection. Calls
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
12
1 Edward S. Feldman
2 for speculation.
3 MR. ESPOSITO: Objection.
4 MR. BERRY: I think your only
5 objection is to form. I think that this
6 is a speaking objection. I think that
7 in a related Phillips' case Magistrate
8 Netburn has severely criticized parties
9 for making speaking objections and if it
10 continues we are going to raise it with
11 the Court.
12 MR. ESPOSITO: Mr. Berry, this is
13 Frank Esposito, I merely stated
14 objection and I think Cindy, the court
15 reporter, got that.
16 Thank you.
17 MR. BERRY: That's fine. We are
18 going to take speaking objections
19 seriously. If necessary, if they
20 continue, we are going to terminate this
21 deposition and get rulings relying on
22 Magistrate Netburn's clear comments in
23 the Phillips cases.
24 MR. ESPOSITO: Again, I merely
25 stated "objection."
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
13
1 Edward S. Feldman
2 MR. BERRY: I heard you. The
3 record is clear, I believe.
4 Q. Mr. Feldman, do you recall
5 whether there was any discussion with
6 Ms. Ringel about what case you and Mr. Akerman
7 were calling about?
8 A. What do you mean by "discussion"?
9 Q. Well, was there any effort by
10 either you or Mr. Akerman to identify the case
11 you were calling about?
12 A. Of course.
13 Q. Okay.
14 And do you remember how you
15 identified what case you were calling about?
16 A. Yes.
17 Q. Okay.
18 And what -- and did you identify
19 the case or did Mr. Akerman identify the case?
20 A. Based upon the transcript of my
21 previous testimony, Nick gave her the index
22 number.
23 Q. Okay.
24 And did Mr. Akerman say anything
25 else besides giving her the index number?
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
14
1 Edward S. Feldman
2 A. I don't remember. I know he gave
3 her the index number.
4 Q. Did he ask her any questions
5 besides giving her the index number?
6 A. I don't recall exactly what was
7 said.
8 Q. Did he say anything besides
9 giving her the index number?
10 A. Of course.
11 MR. ESPOSITO: Objection.
12 Q. Is there an answer?
13 A. The screen went blank, so I don't
14 know what was going on. I just heard
15 objection by Mr. Esposito or somebody.
16 Q. Okay.
17 He's not your attorney and he's
18 not entitled to direct you not to answer, so
19 I'm waiting for your answer.
20 A. Mr. Berry, I told you the screen
21 went blank and now I'm first seeing you again
22 and hearing you again.
23 Q. You can hear me now?
24 A. Yes, I can.
25 Q. Okay. Fine.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
15
1 Edward S. Feldman
2 A. The question was, as I recall --
3 read back the question. Let her read back the
4 question.
5 Q. Go ahead.
6 (Record read.)
7 Q. Is your answer "of course"?
8 I had trouble hearing it.
9 A. Of course.
10 Q. Thank you.
11 A. You do not just call somebody up
12 and say index number, blank, blank, blank.
13 Q. Okay.
14 So do you recall what else he
15 said besides giving her the index number?
16 MR. ESPOSITO: Objection.
17 A. I do not recall his exact words.
18 Q. What was the substance of what he
19 said besides giving her the index number?
20 MR. ESPOSITO: Objection.
21 A. I can only repeat based upon my
22 previous testimony, which you have already
23 shown that you have the transcript.
24 Q. What, based on your review of
25 your prior testimony, what is your answer to
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
16
1 Edward S. Feldman
2 the question what did Mr. Akerman say besides
3 giving her the index number?
4 MR. BADARACCO: Objection to the
5 form of the question.
6 A. My recollection is based solely
7 upon my previous testimony.
8 Q. And what is that recollection?
9 A. That Mr. Akerman asked if the TRO
10 was any -- was still in effect based upon the
11 denial of the motion for preliminary
12 injunction.
13 Q. Okay.
14 Did Mr. Akerman use the term
15 "TRO"?
16 A. I don't recall.
17 Q. Did he use the term "temporary
18 restraining order"?
19 A. That's the same question. I
20 don't recall.
21 Q. Did he use the term "escrow
22 order"?
23 A. I don't recall.
24 Q. Thank you.
25 MR. BERRY: I have to adjust
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
17
1 Edward S. Feldman
2 this. I lost the screen share function.
3 Q. Mr. Feldman, I'm taking you back
4 to Exhibit 105, which is your prior testimony
5 in the Knopf v. Phillips case.
6 Do you see the material that's
7 been highlighted at page 59?
8 A. Yes, I do.
9 Q. Okay.
10 Can you read the highlighted
11 material?
12 A. (Witness reviewing.)
13 Q. Starting with line 11 to
14 yourself.
15 A. (Witness reviewing.)
16 Okay.
17 Q. Is it correct that one of the
18 orders that you called Ms. Ringel about was
19 dated December 29, 2015?
20 A. I don't recall.
21 Q. Do you see here that when I
22 showed you the December 29, 2015 order in your
23 Phillips deposition, you said that I had
24 refreshed your recollection?
25 A. That's what it says, yes.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
18
1 Edward S. Feldman
2 Q. Okay.
3 Do you recall the substance of
4 the December 29, 2015 order as you sit here
5 today?
6 A. Without it in front of me, no.
7 Q. Pardon me?
8 A. Without having it in front of me,
9 no.
10 Q. Okay.
11 Mr. Feldman, I'm now screen
12 sharing the December 29, 2015 order that's
13 been previously marked as Exhibit 3. I'm
14 sorry, Exhibit 11. It's been previously
15 marked as Exhibit 11.
16 Do you see it?
17 A. I see a marking of Exhibit 11
18 from June 19th of 2017.
19 Q. Right.
20 "The parties have agreed that the
21 deposition sequence used in the Phillips case
22 would be continued in this case."
23 A. Okay.
24 Q. Can you see the order that's been
25 marked as Exhibit 11?
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
19
1 Edward S. Feldman
2 A. Yes.
3 Q. And that's dated December 29,
4 2015?
5 A. Correct.
6 Q. Can you read it to yourself?
7 A. (Witness reviewing.)
8 Okay.
9 Q. Having read the order, was that
10 one of the orders that you and Mr. Akerman
11 were calling Ms. Ringel about?
12 MR. BADARACCO: Objection to
13 form.
14 MR. BERRY: Pardon?
15 MR. BADARACCO: Objection to
16 form.
17 A. I believe it was.
18 Q. Mr. Feldman, I'm showing you
19 what's been marked as Plaintiffs' Exhibit 177,
20 which is a transcript of a hearing in a case
21 entitled Knopf against Feldman & Associates as
22 escrow agent and attorney, and lists some
23 other defendants.
24 Do you see the first page has
25 been marked as Exhibit 177?
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
20
1 Edward S. Feldman
2 A. I don't see anything yet.
3 Q. I'm sorry.
4 Do you see it now?
5 A. Yes, I do.
6 Q. Do you recall attending a hearing
7 before Justice Gerald Lebovits on May 23, 2019
8 in the Knopf versus Feldman & Associates
9 pleading?
10 A. Do I specifically recall being
11 there, no. If I was in the appearances, which
12 I don't see, maybe I was there.
13 Q. Do you see that you appeared, if
14 you go to the second page?
15 A. Yes, I do.
16 Q. Okay.
17 Do you recall appearing there
18 now?
19 A. Specifically, no, but I remember
20 the case that you are talking about.
21 Q. I'm taking you to page 56 of the
22 transcript. Can you read line 6 through 14
23 into the record.
24 A. "THE COURT: Okay, so why did --"
25 Q. You can do it to yourself or you
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
21
1 Edward S. Feldman
2 can do it out loud.
3 A. You said to read it into the
4 record.
5 Q. Oh, I'm sorry, you are right.
6 So, yes, please read it into the record.
7 A. "THE COURT: Okay, so why did
8 Mr. Akerman have to call Ms. Ringel, if you
9 know? Might be difficult for you to know it.
10 But he -- you must have asked him if you were
11 going to be part of the conversation, because
12 what, tell me?"
13 "MR. FELDMAN: Because as Your
14 Honor indicated already, the actual Decision,
15 which was later clarified, the actual Decision
16 to me was ambiguous. It was also
17 ambiguous --"
18 Q. Okay.
19 What Decision were you referring
20 to when you told Judge Lebovits that the
21 Decision that you and Mr. Akerman were calling
22 Ms. Ringel about was ambiguous to you?
23 A. I'm not going to assume which one
24 it was.
25 Q. Well --
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
22
1 Edward S. Feldman
2 A. If you go back to the hearings
3 maybe it will tell you what it was Judge
4 Lebovits --
5 Q. It appears that Justice Lebovits
6 cut you off when you were in the middle of a
7 sentence. You were saying it was also
8 ambiguous and then it appears the Court cut
9 you off.
10 How were you going to finish that
11 sentence? Were you going to say, for example,
12 it was also ambiguous to Mr. Sanford?
13 MR. BADARACCO: Objection to
14 form. Calls for speculation.
15 A. I'm not going to speculate what
16 was in my mind in June of 2019.
17 Q. You mean on May 23rd of 2019?
18 A. I'm sorry, May 23rd of 2019.
19 Q. Okay.
20 So do you know whether
21 Mr. Phillips, the buyer, found the December
22 29, 2015 order to be ambiguous?
23 MR. BADARACCO: Same objection.
24 A. I have no idea.
25 Q. All right.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
23
1 Edward S. Feldman
2 RL
3 Do you know whether Mr. Akerman
4 found the situation presented by the
5 three orders ambiguous as to whether or
6 not there was an escrow requirement?
7 MR. BADARACCO: Same objection.
8 A. I'm not going to speculate what
9 Mr. Akerman knew or didn't knew (sic) or
10 thought.
11 Q. All right.
12 Okay.
13 MR. BERRY: We are going to mark
14 that for a ruling.
15 I'm going to say this, hopefully
16 we can clarify something, keep things as
17 simple as possible. I think it's like,
18 you know, as Mr. Esposito would say, as
19 he repeatedly says, it's law school 101,
20 that if you want to raise scienter or
21 mens rea or mental defenses, you cannot
22 refuse to testify in advance of trial
23 about your mental impressions.
24 I think that's very fundamental
25 and very basic.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
24
1 Edward S. Feldman
2 Q. So I assume that you understand
3 that if you don't testify about your mental
4 impression, we are going to move in limine to
5 prevent you from testifying about your mental
6 impressions. You do understand that, don't
7 you, Mr. Feldman?
8 MR. ESPOSITO: Objection.
9 A. Mr. Berry, when you ask me a
10 question that goes to my mental state --
11 Q. Right.
12 A. -- I can answer -- if I can
13 answer it, I will do it. If you ask me a
14 question what somebody else was thinking at a
15 certain point in time --
16 Q. Okay.
17 A. -- I will not speculate.
18 Q. Did Mr. Akerman tell you that he
19 found the situation presented by the three
20 orders ambiguous as to whether or not there
21 was an escrow requirement in place?
22 MR. BADARACCO: Objection to
23 form.
24 A. I don't believe he ever used that
25 express language.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
25
1 Edward S. Feldman
2 Q. Did he use any language to
3 indicate any uncertainty on his part about
4 whether or not there was an escrow order in
5 place?
6 MR. BADARACCO: Objection to
7 form.
8 A. As I believe I've previously
9 testified, it was my and Mr. Akerman's
10 understanding that as a matter of procedural
11 law, the denial of the motion for preliminary
12 injunction eliminated what I call a TRO, what
13 you are calling an escrow order, that this was
14 required to be clarified by the title company.
15 Q. Taking you to page 166 (sic) of
16 the hearing -- of the transcript of the
17 hearing in the Knopf v. Feldman Associates
18 case, and I would like you to read lines 4
19 through 10 into the record, which I've just
20 highlighted.
21 Let me know when you are done.
22 A. There's nothing to read.
23 Nothing's up.
24 Q. I'm sorry. I'm sorry.
25 Thank you.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
26
1 Edward S. Feldman
2 Do you know see page 166 of
3 Exhibit 177?
4 A. Yes.
5 Q. Do you see the lines that have
6 been highlighted between line 4 and line 10?
7 A. Yes.
8 Q. Can you read that to yourself?
9 A. (Witness reviewing.)
10 Okay.
11 Q. Do you recall telling Justice
12 Lebovits that either you or Mr. Akerman had a
13 concern about the wording in a particular
14 decision?
15 A. Evidently that's what I said.
16 Q. Do you recall now whether it was
17 your concern or whether it was Mr. Akerman's
18 concern?
19 A. I don't recall exactly whose it
20 was.
21 MR. BERRY: I didn't quite hear
22 the answer; did the court reporter?
23 A. I don't recall. I don't recall.
24 Q. Thank you.
25 Mr. Feldman, I'm now showing you
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
27
1 Edward S. Feldman
2 what's been marked as Plaintiffs' Exhibit 116,
3 which is the transcript of a deposition that
4 Mr. Akerman gave on September 6, 2019. Can
5 you see it?
6 A. Yes, I can.
7 Q. Taking you to page 72 and I want
8 you to read between line 19 on page 72 and
9 page 21 on page 73. Let me know -- and you
10 can read it to yourself. Let me know if you
11 want me to page forward. I've highlighted
12 line 19.
13 A. Can you make it a little larger?
14 Q. Sure.
15 How's that?
16 A. That's a little better.
17 Q. Thank you.
18 A. (Witness reviewing.)
19 From 19, you said?
20 Q. Yeah, beginning on page 72 at
21 line 19.
22 A. (Witness reviewing.)
23 Okay, move it.
24 (Witness reviewing.)
25 Okay.
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
28
1 Edward S. Feldman
2 Q. Did you -- do you agree with
3 Mr. Akerman's testimony that it was your
4 concern that prompted the call to Ms. Ringel?
5 MR. BADARACCO: Objection to
6 form.
7 A. I believe what Nick said is
8 correct.
9 Q. Okay.
10 I'm going to highlight some
11 testimony immediately following what you just
12 read and I'm going to ask you to read it into
13 the record, page 73, lines 14 to 21.
14 A. Question: "Did you tell him your
15 own view, your own opinion prior to the call?"
16 Answer: "I have already
17 testified to that."
18 Question: "That wasn't good
19 enough for him?"
20 Answer: "It was apparently not,
21 because he wanted to confirm that with the
22 clerk of the Appellate Division."
23 MR. BERRY: Okay, I have -- a
24 cleaning lady is here. I have to close
25 the door so the vacuum sweeper doesn't
CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019
NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023
29
1 Edward S. Feldman
2 take over.
3 Give me one second.
4 (Recess taken.)
5 MR. BERRY: Thank you.
6 BY MR. BERRY:
7 Q. So if we go back to lines 14
8 through 17, Mr. Akerman is asked a question:
9 "Did you tell him," meaning
10 Mr. Feldman "your own view, your own opinion
11 prior to the call?"
12 And Mr. Akerman stated "I have
13 already testified to that."
14 What was Mr. Akerman's view as to
15 whether or not there was an escrow order in
16 place prior to the call?
17 MR. BADARACCO: Objection to
18 form.
19 A. As I recall, Mr. Akerman agreed
20 with me that procedurally, the TRO was vacated
21 pursuant to further order of the Court, which
22 is what the TRO stated. So at that time when
23 the Court denied the motion for preliminary
24 injunction, the TRO was gone.
25 Q. Okay.
CINDY AFANADOR COURT REPORTING, INC.
Preview
FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 Exhibit L FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------x NORMA KNOPF and MICHAEL KNOPF, Plaintiffs, -against- FRANK M. ESPOSITO, DORSEY & WHITNEY, LLP, NATHANIEL H. AKERMAN, EDWARD S. FELDMAN and MICHAEL HAYDEN SANFORD, Defendants. Case No: 17 Civ. 5833 (DLC)(SN) --------------------------------------x February 10, 2021 11:02 a.m. Remote Deposition of EDWARD S. FELDMAN, pursuant to Order, before CINDY A. AFANADOR, Certified Shorthand Reporter, Registered Professional Reporter, Certified Realtime Reporter, Registered Merit Reporter and Notary Public of the State of New York. CINDY AFANADOR COURT REPORTING, INC. 516-491-2694 www.cindycourtreporting.com CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 2 A P P E A R A N C E S: BERRY LAW PLLC Attorneys for Plaintiffs 745 Fifth Avenue, 5th Floor New York, New York 10151 BY: ERIC BERRY, ESQ. berrylawpllc@gmail.com (212) 355-0777 (via videoconference) PATTERSON BELKNAP, LLP Attorneys for Defendants Dorsey & Whitney, LLP and Nathaniel H. Akerman 1133 Sixth Avenue New York, New York 10036 NOT PRESENT DORSEY & WHITNEY LLP Attorneys for Defendant Dorsey & Whitney, LLP 51 West 52nd Street New York, New York 10019 BY: ANTHONY BADARACCO, ESQ. badaracco.anthony@dorsey.com (609) 230-2970 CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 3 1 2 3 PETER LANCASTER, ESQ. 4 In-house counsel for Dorsey & Whitney, LLP 5 50 South 6th Street, Suite 2200 6 Minneapolis, Minnesota 55402 7 lancaster.peter@dorsey.com 8 (via videoconference) 9 10 NADEL & CIARLO, P.C. 11 Attorneys for Non-Party Witness Michael 12 Phillips 13 527 Madison Avenue, 7th Floor 14 New York, New York 10022 15 BY: ADAM HANAN, ESQ. 16 ahanan@ncesq.com 17 - AND - 18 LORRAINE NADEL, ESQ. 19 lnadel@ncesq.com 20 (212) 317-9500 21 (via videoconference) 22 23 ALSO PRESENT: 24 Frank M. Esposito 25 Nathaniel H. Akerman CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 4 1 2 IT IS HEREBY STIPULATED AND 3 AGREED by and between the attorneys 4 for the respective parties herein, 5 that the filing, sealing and 6 certification of the within deposition 7 be waived. 8 IT IS FURTHER STIPULATED AND 9 AGREED that all objections, except 10 as to the form of the question, 11 shall be reserved to the time of the 12 trial. 13 IT IS FURTHER STIPULATED AND 14 AGREED that the within deposition 15 may be sworn to and signed before 16 any officer authorized to administer 17 an oath with the same force and 18 effect as if signed and sworn to 19 before the Court. 20 21 22 - oOo - 23 24 25 CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 5 1 Edward S. Feldman 2 E D W A R D S. F E L D M A N, called as a 3 witness, having been duly sworn by a 4 Notary Public, was examined and 5 testified as follows: 6 7 THE COURT REPORTER: Could you 8 please state your name and address for 9 the record. 10 THE WITNESS: Edward S. Feldman. 11 570 Grand Avenue, Englewood, New Jersey 12 07631. 13 EXAMINATION BY 14 MR. BERRY: 15 Q. Mr. Feldman, how are you today? 16 A. Fine. 17 Q. Mr. Feldman, do you recall being 18 deposed in the Knopf v. Phillips case on 19 June 28th -- I'm sorry, June 29th of 2017? 20 A. Is that the date? I thought it 21 was June 26th, but okay, yes, I recall the 22 deposition. 23 Q. Thank you. 24 Mr. Feldman, your audio is not 25 great. CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 6 1 Edward S. Feldman 2 Can you -- 3 A. Is that better? 4 Q. That's a little bit better. 5 Thank you. 6 A. I'll get a little closer. 7 Q. Thanks. 8 Do you see -- hold on for one 9 second. 10 Mr. Feldman, I'm screen sharing 11 the first page of your deposition in the 12 Knopf v. Phillips case, which has been 13 identified as Exhibit 105. 14 Can you -- do you see the first 15 page? 16 A. Yes, I do. 17 Q. I'm directing your attention to 18 your prior testimony begins on page 34 at the 19 highlighted material. 20 A. Yes. 21 Q. Can you read from page 34 line 18 22 to page -- to the end of page 34 starting at 23 line 18, which I'm highlighting. Read it to 24 yourself. 25 A. (Witness reviewing.) CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 7 1 Edward S. Feldman 2 Okay. 3 Q. Do you see that you state in 4 your answer "I was asking her," meaning 5 Ms. Ringel, "whether there was any restraints. 6 I didn't go into the whole lawsuit or 7 Appellate Division, because from what I had 8 gathered it was very convoluted and 9 complicated in multiple motions." 10 What did you mean by "convoluted 11 and complicated"? 12 A. I don't remember what I said that 13 long ago. 14 Q. But -- 15 A. I don't remember. 16 Q. Again, your audibility is not 17 great. 18 What -- okay, but regardless -- 19 A. I don't recall. 20 Q. Pardon? 21 A. I don't recall. 22 Q. Okay. 23 Did you mean that Mr. Akerman's 24 explanation to Ms. Ringel had been a 25 complicated and convoluted explanation? CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 8 1 Edward S. Feldman 2 A. I just told you I don't recall. 3 MR. BADARACCO: Objection to 4 form. 5 Q. Well, do you remember thinking 6 that something was complicated and convoluted 7 when you spoke to Ms. Ringel on January 12, 8 2016? 9 A. I don't recall four and a half 10 years ago. I don't recall what I was 11 thinking. 12 Q. Isn't it correct that you are 13 saying that the different orders that 14 Mr. Akerman was speaking to Ms. Ringel about 15 presented a complicated and convoluted 16 situation in your view? 17 MR. ESPOSITO: Objection. 18 This is Frank Esposito, Cindy. 19 Thank you. 20 THE COURT REPORTER: Thank you. 21 A. I don't recall what that was 22 about. 23 Q. You don't recall that the call 24 Mr. Akerman placed was about three orders 25 dated October 22, 2015, November 12, 2015 and CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 9 1 Edward S. Feldman 2 December 29, 2015? 3 MR. BADARACCO: Objection to 4 form, argumentative and assumes facts 5 not in evidence. 6 A. I agree. I'm objecting to that. 7 You are making up testimony as it goes along. 8 Q. Okay, Mr. Feldman, I want you to 9 read out loud your answer to my question that 10 begins on page 34 at line 18. 11 My question is: "You are asking 12 her how many different orders?" 13 Then there is the words 14 "Mr. Ackerman," which I don't understand. 15 Please read your answer from line 16 20 to 25 into the record. 17 A. "I was asking her whether there" 18 were -- "there was," probably should be were, 19 "any restraints." I didn't go into the whole 20 lawsuit or Appellate Division, because from 21 what I had gathered, it was a very convoluted 22 and complicated in multiple motions. I had a 23 very simple question, can I close." 24 Q. Were you giving truthful 25 testimony when you gave that answer on CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 10 1 Edward S. Feldman 2 June 29th of 2017? 3 A. Yes. 4 Q. Thank you. 5 Mr. Feldman, I'm screen sharing 6 what's been previously marked as Exhibit 102, 7 which is Ms. Ringel's deposition from 8 August 15, 2017 in the Phillips case. 9 Can you see it? 10 A. Yes, I can. 11 Q. Can you read the highlighted 12 testimony on page 44 to yourself. 13 A. (Witness reviewing.) 14 Q. You should read from line 11 on 15 page 44 to line 4 on page 45 and when you want 16 me to page forward, just say so. 17 A. (Witness reviewing.) 18 Q. Read it to yourself. 19 A. I'm doing that. 20 Q. Okay. Thanks. 21 You want me to page forward? 22 A. Wait until I tell you, please. 23 Q. Okay. 24 A. You went too fast. 25 Q. I'm sorry. I misunderstood. I CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 11 1 Edward S. Feldman 2 thought you were asking me to page forward. 3 Your audibility is not great. Please tell me 4 when to page forward. 5 A. (Witness reviewing.) 6 Next page, please. 7 Q. Thank you. 8 A. (Witness reviewing.) 9 Okay. 10 Q. Do you see Ms. Ringel's testimony 11 that when you and Mr. Akerman called, you 12 asked who -- you asked whether she was 13 familiar with the order. I'm highlighting the 14 phrase "familiar with the order." 15 A. Yes. 16 Q. Between you and Mr. Akerman, who 17 asked Ms. Ringel whether she was familiar with 18 the order? 19 A. I have no idea. I do not recall 20 four and a half years ago who said what, where 21 and how. 22 Q. Is Ms. Ringel testifying 23 truthfully when she said that she was asked 24 whether she was familiar with the order? 25 MR. BADARACCO: Objection. Calls CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 12 1 Edward S. Feldman 2 for speculation. 3 MR. ESPOSITO: Objection. 4 MR. BERRY: I think your only 5 objection is to form. I think that this 6 is a speaking objection. I think that 7 in a related Phillips' case Magistrate 8 Netburn has severely criticized parties 9 for making speaking objections and if it 10 continues we are going to raise it with 11 the Court. 12 MR. ESPOSITO: Mr. Berry, this is 13 Frank Esposito, I merely stated 14 objection and I think Cindy, the court 15 reporter, got that. 16 Thank you. 17 MR. BERRY: That's fine. We are 18 going to take speaking objections 19 seriously. If necessary, if they 20 continue, we are going to terminate this 21 deposition and get rulings relying on 22 Magistrate Netburn's clear comments in 23 the Phillips cases. 24 MR. ESPOSITO: Again, I merely 25 stated "objection." CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 13 1 Edward S. Feldman 2 MR. BERRY: I heard you. The 3 record is clear, I believe. 4 Q. Mr. Feldman, do you recall 5 whether there was any discussion with 6 Ms. Ringel about what case you and Mr. Akerman 7 were calling about? 8 A. What do you mean by "discussion"? 9 Q. Well, was there any effort by 10 either you or Mr. Akerman to identify the case 11 you were calling about? 12 A. Of course. 13 Q. Okay. 14 And do you remember how you 15 identified what case you were calling about? 16 A. Yes. 17 Q. Okay. 18 And what -- and did you identify 19 the case or did Mr. Akerman identify the case? 20 A. Based upon the transcript of my 21 previous testimony, Nick gave her the index 22 number. 23 Q. Okay. 24 And did Mr. Akerman say anything 25 else besides giving her the index number? CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 14 1 Edward S. Feldman 2 A. I don't remember. I know he gave 3 her the index number. 4 Q. Did he ask her any questions 5 besides giving her the index number? 6 A. I don't recall exactly what was 7 said. 8 Q. Did he say anything besides 9 giving her the index number? 10 A. Of course. 11 MR. ESPOSITO: Objection. 12 Q. Is there an answer? 13 A. The screen went blank, so I don't 14 know what was going on. I just heard 15 objection by Mr. Esposito or somebody. 16 Q. Okay. 17 He's not your attorney and he's 18 not entitled to direct you not to answer, so 19 I'm waiting for your answer. 20 A. Mr. Berry, I told you the screen 21 went blank and now I'm first seeing you again 22 and hearing you again. 23 Q. You can hear me now? 24 A. Yes, I can. 25 Q. Okay. Fine. CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 15 1 Edward S. Feldman 2 A. The question was, as I recall -- 3 read back the question. Let her read back the 4 question. 5 Q. Go ahead. 6 (Record read.) 7 Q. Is your answer "of course"? 8 I had trouble hearing it. 9 A. Of course. 10 Q. Thank you. 11 A. You do not just call somebody up 12 and say index number, blank, blank, blank. 13 Q. Okay. 14 So do you recall what else he 15 said besides giving her the index number? 16 MR. ESPOSITO: Objection. 17 A. I do not recall his exact words. 18 Q. What was the substance of what he 19 said besides giving her the index number? 20 MR. ESPOSITO: Objection. 21 A. I can only repeat based upon my 22 previous testimony, which you have already 23 shown that you have the transcript. 24 Q. What, based on your review of 25 your prior testimony, what is your answer to CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 16 1 Edward S. Feldman 2 the question what did Mr. Akerman say besides 3 giving her the index number? 4 MR. BADARACCO: Objection to the 5 form of the question. 6 A. My recollection is based solely 7 upon my previous testimony. 8 Q. And what is that recollection? 9 A. That Mr. Akerman asked if the TRO 10 was any -- was still in effect based upon the 11 denial of the motion for preliminary 12 injunction. 13 Q. Okay. 14 Did Mr. Akerman use the term 15 "TRO"? 16 A. I don't recall. 17 Q. Did he use the term "temporary 18 restraining order"? 19 A. That's the same question. I 20 don't recall. 21 Q. Did he use the term "escrow 22 order"? 23 A. I don't recall. 24 Q. Thank you. 25 MR. BERRY: I have to adjust CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 17 1 Edward S. Feldman 2 this. I lost the screen share function. 3 Q. Mr. Feldman, I'm taking you back 4 to Exhibit 105, which is your prior testimony 5 in the Knopf v. Phillips case. 6 Do you see the material that's 7 been highlighted at page 59? 8 A. Yes, I do. 9 Q. Okay. 10 Can you read the highlighted 11 material? 12 A. (Witness reviewing.) 13 Q. Starting with line 11 to 14 yourself. 15 A. (Witness reviewing.) 16 Okay. 17 Q. Is it correct that one of the 18 orders that you called Ms. Ringel about was 19 dated December 29, 2015? 20 A. I don't recall. 21 Q. Do you see here that when I 22 showed you the December 29, 2015 order in your 23 Phillips deposition, you said that I had 24 refreshed your recollection? 25 A. That's what it says, yes. CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 18 1 Edward S. Feldman 2 Q. Okay. 3 Do you recall the substance of 4 the December 29, 2015 order as you sit here 5 today? 6 A. Without it in front of me, no. 7 Q. Pardon me? 8 A. Without having it in front of me, 9 no. 10 Q. Okay. 11 Mr. Feldman, I'm now screen 12 sharing the December 29, 2015 order that's 13 been previously marked as Exhibit 3. I'm 14 sorry, Exhibit 11. It's been previously 15 marked as Exhibit 11. 16 Do you see it? 17 A. I see a marking of Exhibit 11 18 from June 19th of 2017. 19 Q. Right. 20 "The parties have agreed that the 21 deposition sequence used in the Phillips case 22 would be continued in this case." 23 A. Okay. 24 Q. Can you see the order that's been 25 marked as Exhibit 11? CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 19 1 Edward S. Feldman 2 A. Yes. 3 Q. And that's dated December 29, 4 2015? 5 A. Correct. 6 Q. Can you read it to yourself? 7 A. (Witness reviewing.) 8 Okay. 9 Q. Having read the order, was that 10 one of the orders that you and Mr. Akerman 11 were calling Ms. Ringel about? 12 MR. BADARACCO: Objection to 13 form. 14 MR. BERRY: Pardon? 15 MR. BADARACCO: Objection to 16 form. 17 A. I believe it was. 18 Q. Mr. Feldman, I'm showing you 19 what's been marked as Plaintiffs' Exhibit 177, 20 which is a transcript of a hearing in a case 21 entitled Knopf against Feldman & Associates as 22 escrow agent and attorney, and lists some 23 other defendants. 24 Do you see the first page has 25 been marked as Exhibit 177? CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 20 1 Edward S. Feldman 2 A. I don't see anything yet. 3 Q. I'm sorry. 4 Do you see it now? 5 A. Yes, I do. 6 Q. Do you recall attending a hearing 7 before Justice Gerald Lebovits on May 23, 2019 8 in the Knopf versus Feldman & Associates 9 pleading? 10 A. Do I specifically recall being 11 there, no. If I was in the appearances, which 12 I don't see, maybe I was there. 13 Q. Do you see that you appeared, if 14 you go to the second page? 15 A. Yes, I do. 16 Q. Okay. 17 Do you recall appearing there 18 now? 19 A. Specifically, no, but I remember 20 the case that you are talking about. 21 Q. I'm taking you to page 56 of the 22 transcript. Can you read line 6 through 14 23 into the record. 24 A. "THE COURT: Okay, so why did --" 25 Q. You can do it to yourself or you CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 21 1 Edward S. Feldman 2 can do it out loud. 3 A. You said to read it into the 4 record. 5 Q. Oh, I'm sorry, you are right. 6 So, yes, please read it into the record. 7 A. "THE COURT: Okay, so why did 8 Mr. Akerman have to call Ms. Ringel, if you 9 know? Might be difficult for you to know it. 10 But he -- you must have asked him if you were 11 going to be part of the conversation, because 12 what, tell me?" 13 "MR. FELDMAN: Because as Your 14 Honor indicated already, the actual Decision, 15 which was later clarified, the actual Decision 16 to me was ambiguous. It was also 17 ambiguous --" 18 Q. Okay. 19 What Decision were you referring 20 to when you told Judge Lebovits that the 21 Decision that you and Mr. Akerman were calling 22 Ms. Ringel about was ambiguous to you? 23 A. I'm not going to assume which one 24 it was. 25 Q. Well -- CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 22 1 Edward S. Feldman 2 A. If you go back to the hearings 3 maybe it will tell you what it was Judge 4 Lebovits -- 5 Q. It appears that Justice Lebovits 6 cut you off when you were in the middle of a 7 sentence. You were saying it was also 8 ambiguous and then it appears the Court cut 9 you off. 10 How were you going to finish that 11 sentence? Were you going to say, for example, 12 it was also ambiguous to Mr. Sanford? 13 MR. BADARACCO: Objection to 14 form. Calls for speculation. 15 A. I'm not going to speculate what 16 was in my mind in June of 2019. 17 Q. You mean on May 23rd of 2019? 18 A. I'm sorry, May 23rd of 2019. 19 Q. Okay. 20 So do you know whether 21 Mr. Phillips, the buyer, found the December 22 29, 2015 order to be ambiguous? 23 MR. BADARACCO: Same objection. 24 A. I have no idea. 25 Q. All right. CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 23 1 Edward S. Feldman 2 RL 3 Do you know whether Mr. Akerman 4 found the situation presented by the 5 three orders ambiguous as to whether or 6 not there was an escrow requirement? 7 MR. BADARACCO: Same objection. 8 A. I'm not going to speculate what 9 Mr. Akerman knew or didn't knew (sic) or 10 thought. 11 Q. All right. 12 Okay. 13 MR. BERRY: We are going to mark 14 that for a ruling. 15 I'm going to say this, hopefully 16 we can clarify something, keep things as 17 simple as possible. I think it's like, 18 you know, as Mr. Esposito would say, as 19 he repeatedly says, it's law school 101, 20 that if you want to raise scienter or 21 mens rea or mental defenses, you cannot 22 refuse to testify in advance of trial 23 about your mental impressions. 24 I think that's very fundamental 25 and very basic. CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 24 1 Edward S. Feldman 2 Q. So I assume that you understand 3 that if you don't testify about your mental 4 impression, we are going to move in limine to 5 prevent you from testifying about your mental 6 impressions. You do understand that, don't 7 you, Mr. Feldman? 8 MR. ESPOSITO: Objection. 9 A. Mr. Berry, when you ask me a 10 question that goes to my mental state -- 11 Q. Right. 12 A. -- I can answer -- if I can 13 answer it, I will do it. If you ask me a 14 question what somebody else was thinking at a 15 certain point in time -- 16 Q. Okay. 17 A. -- I will not speculate. 18 Q. Did Mr. Akerman tell you that he 19 found the situation presented by the three 20 orders ambiguous as to whether or not there 21 was an escrow requirement in place? 22 MR. BADARACCO: Objection to 23 form. 24 A. I don't believe he ever used that 25 express language. CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 25 1 Edward S. Feldman 2 Q. Did he use any language to 3 indicate any uncertainty on his part about 4 whether or not there was an escrow order in 5 place? 6 MR. BADARACCO: Objection to 7 form. 8 A. As I believe I've previously 9 testified, it was my and Mr. Akerman's 10 understanding that as a matter of procedural 11 law, the denial of the motion for preliminary 12 injunction eliminated what I call a TRO, what 13 you are calling an escrow order, that this was 14 required to be clarified by the title company. 15 Q. Taking you to page 166 (sic) of 16 the hearing -- of the transcript of the 17 hearing in the Knopf v. Feldman Associates 18 case, and I would like you to read lines 4 19 through 10 into the record, which I've just 20 highlighted. 21 Let me know when you are done. 22 A. There's nothing to read. 23 Nothing's up. 24 Q. I'm sorry. I'm sorry. 25 Thank you. CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 26 1 Edward S. Feldman 2 Do you know see page 166 of 3 Exhibit 177? 4 A. Yes. 5 Q. Do you see the lines that have 6 been highlighted between line 4 and line 10? 7 A. Yes. 8 Q. Can you read that to yourself? 9 A. (Witness reviewing.) 10 Okay. 11 Q. Do you recall telling Justice 12 Lebovits that either you or Mr. Akerman had a 13 concern about the wording in a particular 14 decision? 15 A. Evidently that's what I said. 16 Q. Do you recall now whether it was 17 your concern or whether it was Mr. Akerman's 18 concern? 19 A. I don't recall exactly whose it 20 was. 21 MR. BERRY: I didn't quite hear 22 the answer; did the court reporter? 23 A. I don't recall. I don't recall. 24 Q. Thank you. 25 Mr. Feldman, I'm now showing you CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 27 1 Edward S. Feldman 2 what's been marked as Plaintiffs' Exhibit 116, 3 which is the transcript of a deposition that 4 Mr. Akerman gave on September 6, 2019. Can 5 you see it? 6 A. Yes, I can. 7 Q. Taking you to page 72 and I want 8 you to read between line 19 on page 72 and 9 page 21 on page 73. Let me know -- and you 10 can read it to yourself. Let me know if you 11 want me to page forward. I've highlighted 12 line 19. 13 A. Can you make it a little larger? 14 Q. Sure. 15 How's that? 16 A. That's a little better. 17 Q. Thank you. 18 A. (Witness reviewing.) 19 From 19, you said? 20 Q. Yeah, beginning on page 72 at 21 line 19. 22 A. (Witness reviewing.) 23 Okay, move it. 24 (Witness reviewing.) 25 Okay. CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 28 1 Edward S. Feldman 2 Q. Did you -- do you agree with 3 Mr. Akerman's testimony that it was your 4 concern that prompted the call to Ms. Ringel? 5 MR. BADARACCO: Objection to 6 form. 7 A. I believe what Nick said is 8 correct. 9 Q. Okay. 10 I'm going to highlight some 11 testimony immediately following what you just 12 read and I'm going to ask you to read it into 13 the record, page 73, lines 14 to 21. 14 A. Question: "Did you tell him your 15 own view, your own opinion prior to the call?" 16 Answer: "I have already 17 testified to that." 18 Question: "That wasn't good 19 enough for him?" 20 Answer: "It was apparently not, 21 because he wanted to confirm that with the 22 clerk of the Appellate Division." 23 MR. BERRY: Okay, I have -- a 24 cleaning lady is here. I have to close 25 the door so the vacuum sweeper doesn't CINDY AFANADOR COURT REPORTING, INC. 1-877-DEPO-YOU FILED: NEW YORK COUNTY CLERK 06/16/2023 10:23 PM INDEX NO. 150315/2019 NYSCEF DOC. NO. 1150 RECEIVED NYSCEF: 06/16/2023 29 1 Edward S. Feldman 2 take over. 3 Give me one second. 4 (Recess taken.) 5 MR. BERRY: Thank you. 6 BY MR. BERRY: 7 Q. So if we go back to lines 14 8 through 17, Mr. Akerman is asked a question: 9 "Did you tell him," meaning 10 Mr. Feldman "your own view, your own opinion 11 prior to the call?" 12 And Mr. Akerman stated "I have 13 already testified to that." 14 What was Mr. Akerman's view as to 15 whether or not there was an escrow order in 16 place prior to the call? 17 MR. BADARACCO: Objection to 18 form. 19 A. As I recall, Mr. Akerman agreed 20 with me that procedurally, the TRO was vacated 21 pursuant to further order of the Court, which 22 is what the TRO stated. So at that time when 23 the Court denied the motion for preliminary 24 injunction, the TRO was gone. 25 Q. Okay. CINDY AFANADOR COURT REPORTING, INC.