Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024
HL EXHIBIT 65
ELLYN BERK AFFIDAVIT
NOVEMBER 20, 2018
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024
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 63
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
DEPOSITION PAGE 1
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024
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 of New York
Notary Public,
Reg. No. 01RO6356610
Qualified in Bronx County
Commission Expires April 3, 2021
2
2 of 3
DEPOSITION PAGE 2
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024
FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 10/30/2018
Exhibit C
DEPOSITION PAGE 3
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024
FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 10/30/2018
NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER
THIS IS NOT A CONTRACT
New York state law requires real estate licensees who to account. A buyer's agent does not represent the
are
acting as agents of buyers or sellers of
property
to interests of the seller. The obligations of a buyers
advise the potential buyers or sellers with whom they agent are also subject to any specific provisions set
agent and the buy-
work of the nature of their agency relationship and forth in an agreement between the
the rights and obligations it creates. This disclosure er. In dealings with the seller, a buyers agent should
will help you to make informed choices about your (a) exercise reasonable skill and care in performance
with the real estate broker and its sales of the agent's duties; (b) deal honestly, fairly and in
relationship
agents. good faith; and (c) disclose all facts known to the
agent materially the buyers ability and/or
affecting
Throughout the transaction you may receive more
wdlingness to perforrn a contract to acquire sellets
than one disclosure form. The law may require each
with the agent's fi-
property that are not inconsistent
agent in the transaction to present you with
assisting
duciary duties to the buyer.
this disclosure form. A real estate agent is a person
qualified to advise about real estate.
BROKER'S AGENTS
If you need legal, tax or other advice, consult with a
A broker's agent is an agent that cooperates or is en-
professional in that field.
gaged by a listing agent or a buyer's agent (but does
not wohor Ge same Enn as the listing agent or
DISCLOSURE REGARDING REAL ESTATE
buyer's agent) to assist the listmg agent or buyer's
AGENCY RELATIONSHIPS
respective-
agent in locating a property to sell or buy,
ly, for the listing agent's seller or the buyer agent's
SELLER'S AGENT rela-
buyer. The broker's agent does not have a direct
A seller's agent is an agent who is engaged by a seller tionship with the buyer or seller and the buyer or sel-
to represent the sellets interests. The sellets agent ler cannot provide instructions or direction directly to
does this by securing a buyer for the sellets home at the broker's agent. The buyer and the seller therefore
a price and on terms acceptable to the seller. A sel- not have vicarious for the acts of the bro-
do liability
lets agent without the fidu- buyers agent pro-
has, limitation, following kets agent. The listing agent or do
ciary duties to the seller: reasonable care, undivided vide direction and instruction to the brokers agent
loyalty, confidentiality, full disclosure, obedience and and therefore the listing agent or buyers agent will
duty to account. A sellets agent does not represent have liability for the acts of the brokers agent.
the interests of the buyer. The obligations of a seller's
agent are also subject to any specific provisions set DUAL AGENT
forth in an agreement between the agent and the sel-
A real estate broker may represent both the buyer and
ler. In dealmgs with the buyer, a sellers agent should
the seller if both the buyer and seller give their in-
(a) exercise reasonable skill and care m performance . , .
formed consent m wnting. In such a dual agency
sit-
of the agent's duties; (b) deal honestly, fairly and in
uation, the agent will not be able to provide the full
good faith; and (c) disclose all facts known to the
range of fiduciary dutjes to the buyer and seller. The
agent materially affecting the value or desirability of
obligations of an agent are also subject to specif-
any
property, except as otherwise provided by law.
ic provisions set forth in an agreement between the
agent, and the buyer and seller. An agent acting as a
BUYER'S AGENT
dual agent must explam carefully to both the buyer
A buyer's agent is an agent who is engaged by a buy- and seller that the agent is acting for the other party
er to represent the buyers interests. The buyers agent as well. The agent should also explain the possible
does this the purchase of a home at a effects of dual that con-
by negotiating representation, including by
price and on terms acceptable to the buyer. A buyers senting to the dual agency relationship the buyer and
agent has, without limitation, the following fiduciary seller are giving up their right to undivided loyalty. A
duties to the buyer: reasonable undivided loyal- consider the possible
care, buyer or seller should carefully
ty, confidentiality, full disclosure, obedience and duty consequences of a dual agency relationship before
DEPOSITION PAGE 4
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024
FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 10/30/2018
agreeing tosuch representation. A seller or buyer the interests of and advocating on behalf of the buyer
informed consent to dual agen- and the designated sales agent for the seller will func-
may provide advance
cy by the same on this form. tion as the seller's agent the interests of
indicating representing
and on behalf of the seller in the negotia-
advocating
DUAL AGENT WITH DESIGNATED SALES tions between the buyer and seller. A designated sales
AGENTS agent cannot provide the full range of fiduciary duties
to te buyer or seHer. The designated sales agent
If the buyer and the seller provide their informed
must explain that like the dual agent under whose
consent in writing, the principals and the real estate
supervision cannot provide und:-
they function, they
broker who represents both parties as a dual agent
ded loyalty. A buyer or seller should con-
carefully
may designate a sales agent to represent the buyer .
sider the possible consequences of a dual re-
ne- agency
and another sales agent to represent the seller to
with designated sales agents before agree-
lationship
gotiate the purchase and sale of real estate. A sales
ing to such representation. A seller or buyer may
agent works under the supervision of the real estate
provide advance informed consent to dual agency
broker. With the informed consent of the buyer and
with designated sales agents by mdicating the same
the seller in writing, the designated sales agent for the
on this form.
buyer will function as the buyer's agent representing
"Gino"
Biagio Bello
This form was provided to me by (print name of licensee) of
Houlihan Lawrence Inc. (print name of firm or brokerage), a licensed real estate broker
company,
acting in the inteæst of the:
(/) Seller as a (check relationship below) ( ) Buyer as a (check relationship below)
(/) Seller's agent ( ) Buyer's agent
( ) Broker's agent ( ) Broker's agent
( ) Dual agent
( ) Dual agent with designated sales agents
For advance informed consent to either dual or dual with designated sales agents complete sec-
agency agency
tion below:
( ) Advance informed consent dual agency
(/) Advance informed consent to dual agency with designated sales agents
If dual agent with designated
Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024 HL EXHIBIT 65 ELLYN BERK AFFIDAVIT NOVEMBER 20, 2018 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024 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 63 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 DEPOSITION PAGE 1 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024 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 of New York Notary Public, Reg. No. 01RO6356610 Qualified in Bronx County Commission Expires April 3, 2021 2 2 of 3 DEPOSITION PAGE 2 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024 FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 10/30/2018 Exhibit C DEPOSITION PAGE 3 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024 FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 10/30/2018 NEW YORK STATE DISCLOSURE FORM FOR BUYER AND SELLER THIS IS NOT A CONTRACT New York state law requires real estate licensees who to account. A buyer's agent does not represent the are acting as agents of buyers or sellers of property to interests of the seller. The obligations of a buyers advise the potential buyers or sellers with whom they agent are also subject to any specific provisions set agent and the buy- work of the nature of their agency relationship and forth in an agreement between the the rights and obligations it creates. This disclosure er. In dealings with the seller, a buyers agent should will help you to make informed choices about your (a) exercise reasonable skill and care in performance with the real estate broker and its sales of the agent's duties; (b) deal honestly, fairly and in relationship agents. good faith; and (c) disclose all facts known to the agent materially the buyers ability and/or affecting Throughout the transaction you may receive more wdlingness to perforrn a contract to acquire sellets than one disclosure form. The law may require each with the agent's fi- property that are not inconsistent agent in the transaction to present you with assisting duciary duties to the buyer. this disclosure form. A real estate agent is a person qualified to advise about real estate. BROKER'S AGENTS If you need legal, tax or other advice, consult with a A broker's agent is an agent that cooperates or is en- professional in that field. gaged by a listing agent or a buyer's agent (but does not wohor Ge same Enn as the listing agent or DISCLOSURE REGARDING REAL ESTATE buyer's agent) to assist the listmg agent or buyer's AGENCY RELATIONSHIPS respective- agent in locating a property to sell or buy, ly, for the listing agent's seller or the buyer agent's SELLER'S AGENT rela- buyer. The broker's agent does not have a direct A seller's agent is an agent who is engaged by a seller tionship with the buyer or seller and the buyer or sel- to represent the sellets interests. The sellets agent ler cannot provide instructions or direction directly to does this by securing a buyer for the sellets home at the broker's agent. The buyer and the seller therefore a price and on terms acceptable to the seller. A sel- not have vicarious for the acts of the bro- do liability lets agent without the fidu- buyers agent pro- has, limitation, following kets agent. The listing agent or do ciary duties to the seller: reasonable care, undivided vide direction and instruction to the brokers agent loyalty, confidentiality, full disclosure, obedience and and therefore the listing agent or buyers agent will duty to account. A sellets agent does not represent have liability for the acts of the brokers agent. the interests of the buyer. The obligations of a seller's agent are also subject to any specific provisions set DUAL AGENT forth in an agreement between the agent and the sel- A real estate broker may represent both the buyer and ler. In dealmgs with the buyer, a sellers agent should the seller if both the buyer and seller give their in- (a) exercise reasonable skill and care m performance . , . formed consent m wnting. In such a dual agency sit- of the agent's duties; (b) deal honestly, fairly and in uation, the agent will not be able to provide the full good faith; and (c) disclose all facts known to the range of fiduciary dutjes to the buyer and seller. The agent materially affecting the value or desirability of obligations of an agent are also subject to specif- any property, except as otherwise provided by law. ic provisions set forth in an agreement between the agent, and the buyer and seller. An agent acting as a BUYER'S AGENT dual agent must explam carefully to both the buyer A buyer's agent is an agent who is engaged by a buy- and seller that the agent is acting for the other party er to represent the buyers interests. The buyers agent as well. The agent should also explain the possible does this the purchase of a home at a effects of dual that con- by negotiating representation, including by price and on terms acceptable to the buyer. A buyers senting to the dual agency relationship the buyer and agent has, without limitation, the following fiduciary seller are giving up their right to undivided loyalty. A duties to the buyer: reasonable undivided loyal- consider the possible care, buyer or seller should carefully ty, confidentiality, full disclosure, obedience and duty consequences of a dual agency relationship before DEPOSITION PAGE 4 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1820 RECEIVED NYSCEF: 03/11/2024 FILED: WESTCHESTER COUNTY CLERK 10/30/2018 08:57 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 10/30/2018 agreeing tosuch representation. A seller or buyer the interests of and advocating on behalf of the buyer informed consent to dual agen- and the designated sales agent for the seller will func- may provide advance cy by the same on this form. tion as the seller's agent the interests of indicating representing and on behalf of the seller in the negotia- advocating DUAL AGENT WITH DESIGNATED SALES tions between the buyer and seller. A designated sales AGENTS agent cannot provide the full range of fiduciary duties to te buyer or seHer. The designated sales agent If the buyer and the seller provide their informed must explain that like the dual agent under whose consent in writing, the principals and the real estate supervision cannot provide und:- they function, they broker who represents both parties as a dual agent ded loyalty. A buyer or seller should con- carefully may designate a sales agent to represent the buyer . sider the possible consequences of a dual re- ne- agency and another sales agent to represent the seller to with designated sales agents before agree- lationship gotiate the purchase and sale of real estate. A sales ing to such representation. A seller or buyer may agent works under the supervision of the real estate provide advance informed consent to dual agency broker. With the informed consent of the buyer and with designated sales agents by mdicating the same the seller in writing, the designated sales agent for the on this form. buyer will function as the buyer's agent representing "Gino" Biagio Bello This form was provided to me by (print name of licensee) of Houlihan Lawrence Inc. (print name of firm or brokerage), a licensed real estate broker company, acting in the inteæst of the: (/) Seller as a (check relationship below) ( ) Buyer as a (check relationship below) (/) Seller's agent ( ) Buyer's agent ( ) Broker's agent ( ) Broker's agent ( ) Dual agent ( ) Dual agent with designated sales agents For advance informed consent to either dual or dual with designated sales agents complete sec- agency agency tion below: ( ) Advance informed consent dual agency (/) Advance informed consent to dual agency with designated sales agents If dual agent with designated