Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024
HL EXHIBIT 3
DEPOSITION TRANSCRIPT OF PAUL BENJAMIN
AUGUST 15, 2019
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024
August 15, 2019
Page 1 Page 3
1
SUPREME COURT OF THE STATE OF NEW YORK
2 S T I P U L A T I O N S:
COUNTY OF WESTCHESTER : INDEX NO. 60767/2018
---------------------- 3 IT IS HEREBY STIPULATED, by and between
PAMELA GOLDSTEIN, ELLYN & TONY BERK, as 4 the attorneys for the respective parties hereto, that
Administrators of the Estate of WINIFERD BERK,
5 all rights provided by the C.P.L.R., and Part 221 of
and PAUL BENJAMIN, on behalf of themselves and
all others similarly situated, 6 the Uniform Rules for the Conduct of Depositions,
7 including the right to object to any question, except
Plaintiffs,
8 as to form, or to move to strike any testimony at this
- against - 9 examination are reserved; and, in addition, the failure
10 to object to any question or to move to strike any
HOULIHAN/LAWRENCE, INC.,
11 testimony at this examination shall not be a bar or
Defendant. 12 waiver to make such motion at, and is reserved to, the
13 trial of this action.
-----------------------
14 IT IS FURTHER STIPULATED that this
15 deposition may be sworn to by the witness being
August 15, 2019 16 examined before a notary public other than the notary
2:40 p.m. 17 public before whom this examination was begun; but the
18 failure to do so or to return the original of this
19 deposition to counsel shall not be deemed a waiver of
VIDEOTAPED DEPOSITION OF PAUL BENJAMIN, pursuant
to subpoena, taken by Defendant at the offices of 20 the rights provided by Rule 3116 of the C.P.L.R., and
Collier Halpern & Newberg, LLP, One North Lexington 21 shall be controlled thereby. The filing of the
Avenue, White Plains, New York 10601, before Blase J.
22 original of this deposition is waived.
Spinozzi, a Shorthand Reporter and Notary Public within
and for the State of New York. 23 IT IS FURTHER STIPULATED that a copy of
24 this examination shall be furnished to the attorney for
25 the witness being examined without charge therefor.
Page 2 Page 4
1 1 - Paul Benjamin -
2 A P P E A R A N C E S:
3 2 VIDEO TECHNICIAN: We are on the
4 BOISE SHILLER FLEXNER, LLP 3 record. The time is approximately 2:40
Attorneys for Plaintiffs
5 PAMELA GOLDSTEIN, ELLYN & TONY BERK, 4 p.m. The date is Thursday, August 15th,
as Administrators of the Estate of 5 2019.
6 WINIFRED BERK, and PAUL BENJAMIN, on
behalf of themselves, and all others 6 This is the video deposition of Paul
7 similarly situated 7 Benjamin, in the matter of Pamela
333 Main Street
8 Armonk, New York 10504 8 Goldstein, Ellyn & Tony Berk, as
BY: JEREMY VEST, ESQ. 9 Administrators of the Estate of Winifred
9 (jvest@bsfllp.com)
10 10 Berk, and Paul Benjamin, on behalf of
11 COLLIER HALPERN & NEWBERG, LLP 11 themselves and all others similarly
Attorneys for Defendant
12 HOULIHAN/LAWRENCE, INC. 12 situated, versus Houlihan/Lawrence, Index
One North Lexington Avenue 13 Number 60767/2018, in the Supreme Court of
13 White Plains, New York 10601
BY: SHARI B. HOCHBERG, ESQ. 14 the State of New York, County of
14 (shochberg@chnnb.com) 15 Westchester.
15
16 BARNES & THORNBURG, LLP 16 My name is David Shereck, Certified
Attorneys for Defendant 17 Legal Videographer, Shereck Video
17 HOULIHAN/LAWRENCE, INC.
11 South Meridian Street 18 Associates, in association with Lexitas
18 Indianapolis, Indiana 46204 19 Deitz of Rockville Centre, New York.
BY: JESSICA LINDEMANN, ESQ.
19 (jessica.lindemann@btlaw.com) 20 We are located today at the offices of
20 *** 21 Collier Halpern & Newberg, LLP, One North
21
DAVID SHERECK, 22 Lexington Avenue, White Plains, New York.
Certified Legal Videographer
22
23
23 Will counsel please identify themselves
BLASE J. SPINOZZI, 24 for the record, and state whom you
Sr. Court Reporter
represent.
24
25
25
1 (Pages 1 to 4)
DEITZ Court Reporting... A Lexitas Company
800-678-0166
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024
August 15, 2019
Page 5 Page 7
1 - Paul Benjamin - 1 - Paul Benjamin -
2 MS. LINDEMANN: Jessica Lindemann and 2 Q. So you were in the Navy from '89 to
3 Shari Hochberg, Collier Halpern & Newberg, 3 '93?
4 for the defendant Houlihan/Lawrence. 4 A. That's correct.
5 MR. VEST: Jeremy Vest, Boise Schiller 5 Q. Honorable discharge?
6 Flexner, on behalf of plaintiffs Pamela 6 A. Yes.
7 Goldstein, Ellyn & Tony Berk, Paul 7 Q. What did you do after your discharge
8 Benjamin, and all similarly situated. 8 from the Navy?
9 VIDEO TECHNICIAN: Our court reporter 9 A. I engaged in several private security
10 today is Blase Spinozzi, affiliated with 10 jobs.
11 Lexitas Deitz. 11 Q. How long were you involved in private
12 Please swear in the witness. 12 security?
13 P A U L B E N J A M I N, 13 A. I have been involved in private
14 having been duly sworn by Blase J. Spinozzi, 14 security for upwards of twenty-five years.
15 a notary public within and for the state of 15 Q. And it sounds like you're still in that
16 New York, was examined and testified as 16 line of work?
17 follows: 17 A. That's correct.
18 COURT REPORTER: Please state your name 18 Q. Any other employment, aside from
19 and home address for the record. 19 private security?
20 THE WITNESS: Paul Benjamin. 20 A. No.
21 16 Old Logging Road, two words, 21 Q. Are you married?
22 Bedford, New York 10506. 22 A. No, I'm not.
23 EXAMINATION BY MS. LINDEMANN: 23 Q. Any children?
24 Q. Mr. Benjamin, you understand that the 24 A. No.
25 court reporter has administered an oath to you today? 25 Q. Now, you mentioned that you live at 16
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1 - Paul Benjamin - 1 - Paul Benjamin -
2 A. Yes. 2 Old Logging Road; do you own that property?
3 Q. And you understand that's the same oath 3 A. Yes.
4 that you would swear in a court of law before a 4 Q. Prior to your purchase of Old Logging
5 judge? 5 Road, had you been involved in any real estate
6 A. Yes. 6 transactions before?
7 Q. Is there any reason that you can't give 7 A. Yes.
8 complete and truthful testimony here today? 8 Q. How many?
9 A. No. 9 A. At the time, two.
10 Q. Could you briefly describe your 10 Q. Were those both residential purchases,
11 educational background for us? 11 or any investment property?
12 A. High school graduate. 12 A. Both residential.
13 Q. Any post-high school education? 13 Q. So let's start with your first home
14 A. Just military, that's it. 14 purchase; when did you first purchase a home?
15 Q. Military? 15 A. I think around 2010.
16 A. United States Military, yes. 16 Q. Where was that property located?
17 Q. How long did you serve? 17 A. In Brooklyn, New York.
18 A. Four years. 18 Q. Are you a New York native?
19 Q. Which branch of the military were you 19 A. Yes, I am.
20 in? 20 Q. New York City, or --
21 A. Navy. 21 A. New York City.
22 Q. What was your rank? 22 Q. So you purchased a home in Brooklyn;
23 A. E-3 -- sorry, E-4; correction, E-4. 23 what type of property was that?
24 Q. When did you join the Navy? 24 A. A condominium.
25 A. November 1989. 25 Q. Was there any sort of approval process
2 (Pages 5 to 8)
DEITZ Court Reporting... A Lexitas Company
800-678-0166
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024
August 15, 2019
Page 65 Page 67
1 - Paul Benjamin - 1 - Paul Benjamin -
2 Old Logging Road and called Mr. Murray, what did you 2 Q. That printout from the MLS, you would
3 say to him? 3 have seen that?
4 A. I don't recall specifically what I said 4 A. On the screen, yes.
5 to him, but I made an offer on the home. 5 Q. Were you aware that Angela Kessel was a
6 Q. What was the offer? 6 Houlihan/Lawrence agent?
7 A. I believe it was one five, one point 7 A. Was I aware at the time that she was?
8 five million. 8 Q. Yes.
9 Q. So you were offering above list price? 9 A. I believe so. Yes, I believe so,
10 A. Yes. 10 because I believe Brian said he wouldn't be there,
11 Q. Did you discuss that offer with Mr. 11 but Angela would; and I believe he said she was a
12 Murray, or is that something you came to on your own? 12 colleague.
13 A. I don't recall. I had a conversation 13 Q. So you knew that Brian worked with Ms.
14 over the phone when I left. My understanding is that 14 Kessel?
15 the house already had an offer on it. 15 A. Yes.
16 Q. Did you have an understanding that it 16 Q. And you knew that before you toured the
17 had an accepted offer on it? 17 property at 16 Old Logging Road?
18 A. I believe Brian shared that. 18 A. Yes.
19 Q. Given your real estate experience in 19 Q. So after you conveyed this one-point-
20 New York, did you have an understanding that until a 20 five-million-dollar offer to Mr. Murray, when did you
21 property is under contract, either party can walk 21 next speak with Mr. Murray?
22 away? 22 A. I don't recall the next time we spoke,
23 A. I would say that would be my general 23 exactly when that was. It was three years ago. I
24 thinking, yes. 24 don't remember exactly when it was we spoke again.
25 Q. So you're making an offer on a 25 Q. It's hard to remember all the
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1 - Paul Benjamin - 1 - Paul Benjamin -
2 property, trying to displace a buyer that's had an 2 conversations three years ago; isn't it, right?
3 accepted offer? 3 A. That's fair, yes.
4 A. Essentially. 4 Q. So at some point did Mr. Murray -- if
5 Q. So you wanted your offer to become 5 you'd turn to paragraph 314 of Exhibit 10 -- at some
6 competitive, presumably? 6 point did Mr. Murray tell you that he conveyed the
7 A. Yes, that's the idea. 7 offer to Ms. Kessel, but that the seller was prepared
8 Q. And did you have an understanding that 8 to move forward with the other bidder's offer?
9 for the seller to walk away from what was already an 9 A. Yes.
10 accepted offer, you would have to come in above that 10 Q. And Mr. Murray, or your complaint
11 offer? 11 states, that the other offer was for less money, and
12 A. That's how bidding works, yes. 12 subject to a mortgage contingency; do you see that?
13 Q. Common sense; right? 13 A. Yes.
14 A. Yes. 14 Q. Was your offer a cash offer?
15 Q. So did Mr. Murray share with you about 15 A. Yes.
16 where you would need to be to have your offer 16 Q. What was your response to Mr. Murray
17 accepted? 17 when he told you that the seller was prepared to move
18 A. I don't recall the sequence of events 18 forward with the first bidder's offer?
19 between my offer and the accepted price. 19 A. Specifically, I'm not sure; but
20 Q. Did you ever see like a listing sheet 20 generally, as it states in the complaint, whether he
21 on 16 Old Logging Road? 21 thought the seller would accept one point six.
22 A. A listing sheet? I only saw what was 22 Q. Did Mr. Murray suggest to you that you
23 in MLS. But if I forwarded back to them, yes, I'm 23 offer one point six, or is that something you came up
24 sure that I saw a picture of Old Logging -- a listing 24 with on your own?
25 of Old Logging. So -- 25 A. It's a number I came up with on my own.
17 (Pages 65 to 68)
DEITZ Court Reporting... A Lexitas Company
800-678-0166
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024
August 15, 2019
Page 69 Page 71
1 - Paul Benjamin - 1 - Paul Benjamin -
2 Q. Was your thinking that you needed your 2 A. I don't know.
3 offer to be significantly better to get the seller to 3 Q. But ultimately, at the end of the day,
4 move off the acceptable offer that he already had? 4 you got what you wanted done, which was a closed
5 A. Yes; I believe I conferred, and I 5 deal; right?
6 asked, "Would that do it, do you think that would do 6 A. Yes.
7 it?" And which he believed -- he concurred, and said 7 Q. Were you at some point asked to provide
8 he would go back and come back and let me know. 8 proof of funds to purchase 16 Old Logging Road?
9 Q. Did Mr. Murray pressure you to increase 9 A. Yes.
10 your offer? 10 (Whereupon, Defendant's Exhibit Number
11 A. I didn't feel pressured to increase my 11 24, an email dated 4/18/16, consisting of
12 offer by Mr. Murray. 12 two pages, was marked for identification as
13 Q. That's something you just did because 13 of this date.)
14 you wanted the property? 14 Q. Mr. Benjamin, the reporter handed you
15 A. That's correct. 15 Exhibit 24. Do you recognize exhibit 24, as a proof
16 Q. And, in fact, you got the property? 16 of funds that you provided at the owner's attorney's
17 A. "Voila," yes. 17 request in connection with the purchase of 16 Old
18 Q. So that worked out for you, right? 18 Logging Road?
19 A. I don't know how you spell "voila" -- 19 A. Yes.
20 but yes, it did work out for me. 20 Q. If you turn to the back, do you see a
21 Q. And I think you testified earlier you 21 UBS information regarding the account of Paul Ricardo
22 have been happy at 16 Old Logging Road? 22 Benjamin with a value of approximately five million,
23 A. Yes. 23 three hundred and nine, five hundred thirty-four
24 Q. And moving to paragraph 316 of Exhibit 24 point forty-six dollars?
25 10, the complaint alleges that you intended to retain 25 A. Yes.
Page 70 Page 72
1 - Paul Benjamin - 1 - Paul Benjamin -
2 a New York City real estate attorney. Is that the 2 Q. Is that a brokerage account?
3 Mr. Nerenberg we discussed earlier? 3 A. Yes.
4 A. Yes. 4 Q. And were those the funds that you used
5 Q. Mr. Murray conveyed to you that the 5 to purchase 16 Old Logging Road?
6 seller was wary of working with an attorney not from 6 A. Funds were drawn from this bank, yes.
7 Westchester County? 7 Q. Did Mr. Murray at one point send you a
8 A. Yes. 8 disclosure form identifying the nature of his
9 Q. Do you have reason to doubt the 9 representation?
10 veracity of that statement? 10 MR. VEST: Objection. Vague.
11 A. No. 11 A. Mr. Murray sent me a form. I don't
12 Q. Mr. Murray -- 12 recall exactly what the email said, but it had forms
13 A. No, at the time, no. 13 attached to the email. But what specifically are you
14 Q. Mr. Murray referred you to Frank Veith; 14 asking me, though?
15 is that correct? 15 Q. I'm asking you at some point Mr. Murray
16 A. That's correct. 16 sent you a form disclosing and discussing the nature
17 Q. What was your experience like working 17 of his representation?
18 with Mr. Veith? 18 A. He sent me a form, a disclosure form;
19 A. Transactional. 19 did he send me a disclosure form? Yes.
20 Q. Was he competent? 20 (Whereupon, Defendant's Exhibit Number
21 A. He got the job done. 21 25, an email dated 4/20/16, consisting of
22 Q. He got the deal closed, right? 22 two pages, was marked for identification as
23 A. Yes. 23 of this date.)
24 Q. Was he more or less expensive than Mr. 24 Q. Sir, the reporter has placed in front
25 Nerenberg? 25 of you what's been marked Exhibit 25; do you
18 (Pages 69 to 72)
DEITZ Court Reporting... A Lexitas Company
800-678-0166
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024
August 15, 2019
Page 73 Page 75
1 - Paul Benjamin - 1 - Paul Benjamin -
2 recognize Exhibit 25? 2 represent the seller. You knew Angela Kessel was
3 A. Yes. 3 representing the seller, we already established that?
4 Q. Exhibit 25 is actually an email from 4 A. Okay.
5 you to Mr. Murray returning a signed form; correct? 5 Q. Right?
6 A. Yes. 6 A. Yes.
7 Q. You signed that form voluntarily; 7 Q. And you knew that both Mr. Murray and
8 right? 8 Ms. Kessel worked for Houlihan/Lawrence; right?
9 A. Yes. 9 A. Yes.
10 Q. No one twisted your arm to do that, was 10 Q. So turning back up to this bold,
11 there? 11 capitalized "Dual Agent With Designated Sales Agents"
12 A. I understand "voluntary." 12 section in Exhibit 25, let's read a little further.
13 Q. So if we turn to the form that you 13 "A sales agent works under the
14 signed. In Exhibit 25, you see that the form says it 14 supervision of the real estate broker. With the
15 was provided to you by Brian Murray, Houlihan/ 15 informed consent of the buyer and the seller in
16 Lawrence; that's right? 16 writing, the designated sales agent for the buyer
17 A. Yes. 17 will function as the buyer's agent representing the
18 Q. You also see that checked under "acting 18 interests of and advocating on behalf of the
19 in the interest of the," is "Dual agent with 19 buyer."
20 designated sales agents," do you see that in Exhibit 20 That's Brian, right?
21 25? 21 MR. VEST: Objection.
22 A. Yes. 22 A. Yes.
23 Q. Bear with me for a moment. 23 Q. "And the designated sales agent for the
24 If you go up above to the bold, 24 seller will function as the seller's agent
25 capitalized section on "Dual Agent with Designated 25 representing the interests of and advocating on
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1 - Paul Benjamin - 1 - Paul Benjamin -
2 Sales Agents," do you see that? 2 behalf of the seller in the negotiations between the
3 A. I see that. 3 buyer and the seller."
4 Q. Let's read a little bit here. "If the 4 That's Angela, right?
5 buyer and seller provide their informed consent in 5 A. Yes.
6 writing, the principals and the real estate broker 6 Q. And here it is: "A designated sales
7 who represents both paries of a dual agent may 7 agent cannot provide the full range of fiduciary
8 designate a sales agent to represent the buyer and 8 duties to the buyer or seller. The designated sales
9 another sales agent to represent the seller to 9 agent must explain that like the dual agent under
10 negotiated the purchase and sale of real estate." 10 whose supervision they function, they cannot provide
11 Do you see that? 11 undivided loyalty. A buyer or seller should
12 A. I see it. 12 carefully consider the possible consequence of a
13 Q. Okay. You were the buyer in this 13 dual-agency relationship with designated sales agents
14 transaction; right? 14 before agreeing to such representation."
15 A. That's correct. 15 Did I read that correctly?
16 Q. If you go below, above your signature, 16 A. You did it well, yes.
17 you see, "If dual agent with designated sales agents 17 Q. "A seller or buyer may provide advance
18 is indicated above:," Brian S. Murray is appointed to 18 informed consent to dual agency with designated sales
19 represent the buyer; that's you; right? 19 agents by indicating the same on this form."
20 A. Yes. 20 Does that finish it out?
21 Q. And you knew that Brian S. Murray was 21 A. Yes.
22 appointed to represented you? 22 Q. Did you ask Mr. Murray any questions
23 MR. VEST: Objection. Vague. 23 about this form?
24 A. Yes, I was working with Brian then. 24 A. Nope.
25 Q. And Angela Kessel was appointed to 25 Q. You just returned the form with your
19 (Pages 73 to 76)
DEITZ Court Reporting... A Lexitas Company
800-678-0166
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024
August 15, 2019
Page 77 Page 79
1 - Paul Benjamin - 1 - Paul Benjamin -
2 signature here in Exhibit 25; right? 2 A. No. Absent of me, you mean?
3 A. That's correct. 3 Q. Right.
4 Q. And you returned the form, Exhibit 25, 4 A. No, no.
5 before you signed the contract to purchase 16 Old 5 Q. When did the sale of 16 Old Logging
6 Logging Road; did you not? 6 close?
7 A. Yes, I believe so. I would have to go 7 A. July 5th.
8 back and look at the timeline on that, I don't recall 8 Q. So that you closed the purchase of 16
9 exactly. 9 Old Logging Road on July 5th, and you signed Exhibit
10 The question is whether I signed this 10 25 on April 20th of 2016?
11 before I signed the contract? 11 A. Yes.
12 Q. Correct. 12 Q. In the intervening months between when
13 A. That's correct. 13 you signed Exhibit 25 and the date of the closing,
14 Q. Presumably, you read Exhibit 15 (sic) 14 did you raise any objections to Mr. Murray's
15 before you signed it? 15 continued representation of you in connection with
16 A. I didn't. 16 the purchase of 16 Old Logging Road?
17 Q. You didn't read it? 17 A. No.
18 A. No. 18 Q. You let him continue to work on your
19 Q. So this is a one-point-six-million- 19 behalf; right?
20 dollar cash purchase, and you didn't take the time to 20 A. Yes.
21 read a single page that bears your signature? 21 Q. There were presumably milestones
22 A. That's correct. 22 associated with the transaction between April 20th,
23 Q. Presumably, you read Exhibit 25 before 23 2016 and July 5th, 2016; right?
24 you signed it? 24 A. Yes.
25 Let's get a clear record. 25 Q. Perhaps inspection, contracts, all
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1 - Paul Benjamin - 1 - Paul Benjamin -
2 A. Yes. 2 those details, walk-throughs, things that have to
3 MR. VEST: Can you read back the 3 happen before a real estate transaction closes?
4 original question and answer. 4 A. Yes.
5 (Whereupon, the requested testimony was 5 Q. And you let Mr. Murray continue working
6 read back by the reporter.) 6 on all those details during the time between April
7 MR. VEST: So if you could just ask the 7 20th, 2016 and July 5th, 2016; right?
8 question again. 8 A. Yes.
9 Q. Presumably, you read Exhibit 25 before 9 Q. And, in fact, you raised no complaint
10 you signed it? 10 at all about Mr. Murray's representation until you
11 A. No. Presumably, I read this disclosure 11 reached out to Mr. Vest in connection with reading an
12 before I signed it? 12 article; right?
13 Q. Correct. 13 A. Yes -- repeat that question, please.
14 A. No. 14 Q. You raised no complaint about Mr.
15 Q. So for a one-point-six-million-dollar 15 Murray's representation between the date of signing
16 cash purchase, you didn't take the time to read a 16 Exhibit 25, April 10th, 2016 until you reached out to
17 single-page document that bears your signature? 17 Mr. Vest after reading an article?
18 A. That's what I said, so let's correct 18 A. Between -- between this date and
19 that. 19 closing, I had no complaints with Mr. Murray.
20 Q. And you were represented by counsel in 20 Q. Did you at some point develop
21 connection with this transaction as well; correct? 21 complaints about Mr. Murray before you read the
22 A. Yes. 22 article that Mr. Schneidermesser shared with you?
23 Q. Do you have any knowledge as to 23 A. No.
24 discussions or disclosures that Mr. Murray may have 24 Q. Have you spoken to anyone aside from
25 made to Mr. Veith? 25 your counsel about this lawsuit?
20 (Pages 77 to 80)
DEITZ Court Reporting... A Lexitas Company
800-678-0166
Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024 HL EXHIBIT 3 DEPOSITION TRANSCRIPT OF PAUL BENJAMIN AUGUST 15, 2019 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024 August 15, 2019 Page 1 Page 3 1 SUPREME COURT OF THE STATE OF NEW YORK 2 S T I P U L A T I O N S: COUNTY OF WESTCHESTER : INDEX NO. 60767/2018 ---------------------- 3 IT IS HEREBY STIPULATED, by and between PAMELA GOLDSTEIN, ELLYN & TONY BERK, as 4 the attorneys for the respective parties hereto, that Administrators of the Estate of WINIFERD BERK, 5 all rights provided by the C.P.L.R., and Part 221 of and PAUL BENJAMIN, on behalf of themselves and all others similarly situated, 6 the Uniform Rules for the Conduct of Depositions, 7 including the right to object to any question, except Plaintiffs, 8 as to form, or to move to strike any testimony at this - against - 9 examination are reserved; and, in addition, the failure 10 to object to any question or to move to strike any HOULIHAN/LAWRENCE, INC., 11 testimony at this examination shall not be a bar or Defendant. 12 waiver to make such motion at, and is reserved to, the 13 trial of this action. ----------------------- 14 IT IS FURTHER STIPULATED that this 15 deposition may be sworn to by the witness being August 15, 2019 16 examined before a notary public other than the notary 2:40 p.m. 17 public before whom this examination was begun; but the 18 failure to do so or to return the original of this 19 deposition to counsel shall not be deemed a waiver of VIDEOTAPED DEPOSITION OF PAUL BENJAMIN, pursuant to subpoena, taken by Defendant at the offices of 20 the rights provided by Rule 3116 of the C.P.L.R., and Collier Halpern & Newberg, LLP, One North Lexington 21 shall be controlled thereby. The filing of the Avenue, White Plains, New York 10601, before Blase J. 22 original of this deposition is waived. Spinozzi, a Shorthand Reporter and Notary Public within and for the State of New York. 23 IT IS FURTHER STIPULATED that a copy of 24 this examination shall be furnished to the attorney for 25 the witness being examined without charge therefor. Page 2 Page 4 1 1 - Paul Benjamin - 2 A P P E A R A N C E S: 3 2 VIDEO TECHNICIAN: We are on the 4 BOISE SHILLER FLEXNER, LLP 3 record. The time is approximately 2:40 Attorneys for Plaintiffs 5 PAMELA GOLDSTEIN, ELLYN & TONY BERK, 4 p.m. The date is Thursday, August 15th, as Administrators of the Estate of 5 2019. 6 WINIFRED BERK, and PAUL BENJAMIN, on behalf of themselves, and all others 6 This is the video deposition of Paul 7 similarly situated 7 Benjamin, in the matter of Pamela 333 Main Street 8 Armonk, New York 10504 8 Goldstein, Ellyn & Tony Berk, as BY: JEREMY VEST, ESQ. 9 Administrators of the Estate of Winifred 9 (jvest@bsfllp.com) 10 10 Berk, and Paul Benjamin, on behalf of 11 COLLIER HALPERN & NEWBERG, LLP 11 themselves and all others similarly Attorneys for Defendant 12 HOULIHAN/LAWRENCE, INC. 12 situated, versus Houlihan/Lawrence, Index One North Lexington Avenue 13 Number 60767/2018, in the Supreme Court of 13 White Plains, New York 10601 BY: SHARI B. HOCHBERG, ESQ. 14 the State of New York, County of 14 (shochberg@chnnb.com) 15 Westchester. 15 16 BARNES & THORNBURG, LLP 16 My name is David Shereck, Certified Attorneys for Defendant 17 Legal Videographer, Shereck Video 17 HOULIHAN/LAWRENCE, INC. 11 South Meridian Street 18 Associates, in association with Lexitas 18 Indianapolis, Indiana 46204 19 Deitz of Rockville Centre, New York. BY: JESSICA LINDEMANN, ESQ. 19 (jessica.lindemann@btlaw.com) 20 We are located today at the offices of 20 *** 21 Collier Halpern & Newberg, LLP, One North 21 DAVID SHERECK, 22 Lexington Avenue, White Plains, New York. Certified Legal Videographer 22 23 23 Will counsel please identify themselves BLASE J. SPINOZZI, 24 for the record, and state whom you Sr. Court Reporter represent. 24 25 25 1 (Pages 1 to 4) DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024 August 15, 2019 Page 5 Page 7 1 - Paul Benjamin - 1 - Paul Benjamin - 2 MS. LINDEMANN: Jessica Lindemann and 2 Q. So you were in the Navy from '89 to 3 Shari Hochberg, Collier Halpern & Newberg, 3 '93? 4 for the defendant Houlihan/Lawrence. 4 A. That's correct. 5 MR. VEST: Jeremy Vest, Boise Schiller 5 Q. Honorable discharge? 6 Flexner, on behalf of plaintiffs Pamela 6 A. Yes. 7 Goldstein, Ellyn & Tony Berk, Paul 7 Q. What did you do after your discharge 8 Benjamin, and all similarly situated. 8 from the Navy? 9 VIDEO TECHNICIAN: Our court reporter 9 A. I engaged in several private security 10 today is Blase Spinozzi, affiliated with 10 jobs. 11 Lexitas Deitz. 11 Q. How long were you involved in private 12 Please swear in the witness. 12 security? 13 P A U L B E N J A M I N, 13 A. I have been involved in private 14 having been duly sworn by Blase J. Spinozzi, 14 security for upwards of twenty-five years. 15 a notary public within and for the state of 15 Q. And it sounds like you're still in that 16 New York, was examined and testified as 16 line of work? 17 follows: 17 A. That's correct. 18 COURT REPORTER: Please state your name 18 Q. Any other employment, aside from 19 and home address for the record. 19 private security? 20 THE WITNESS: Paul Benjamin. 20 A. No. 21 16 Old Logging Road, two words, 21 Q. Are you married? 22 Bedford, New York 10506. 22 A. No, I'm not. 23 EXAMINATION BY MS. LINDEMANN: 23 Q. Any children? 24 Q. Mr. Benjamin, you understand that the 24 A. No. 25 court reporter has administered an oath to you today? 25 Q. Now, you mentioned that you live at 16 Page 6 Page 8 1 - Paul Benjamin - 1 - Paul Benjamin - 2 A. Yes. 2 Old Logging Road; do you own that property? 3 Q. And you understand that's the same oath 3 A. Yes. 4 that you would swear in a court of law before a 4 Q. Prior to your purchase of Old Logging 5 judge? 5 Road, had you been involved in any real estate 6 A. Yes. 6 transactions before? 7 Q. Is there any reason that you can't give 7 A. Yes. 8 complete and truthful testimony here today? 8 Q. How many? 9 A. No. 9 A. At the time, two. 10 Q. Could you briefly describe your 10 Q. Were those both residential purchases, 11 educational background for us? 11 or any investment property? 12 A. High school graduate. 12 A. Both residential. 13 Q. Any post-high school education? 13 Q. So let's start with your first home 14 A. Just military, that's it. 14 purchase; when did you first purchase a home? 15 Q. Military? 15 A. I think around 2010. 16 A. United States Military, yes. 16 Q. Where was that property located? 17 Q. How long did you serve? 17 A. In Brooklyn, New York. 18 A. Four years. 18 Q. Are you a New York native? 19 Q. Which branch of the military were you 19 A. Yes, I am. 20 in? 20 Q. New York City, or -- 21 A. Navy. 21 A. New York City. 22 Q. What was your rank? 22 Q. So you purchased a home in Brooklyn; 23 A. E-3 -- sorry, E-4; correction, E-4. 23 what type of property was that? 24 Q. When did you join the Navy? 24 A. A condominium. 25 A. November 1989. 25 Q. Was there any sort of approval process 2 (Pages 5 to 8) DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024 August 15, 2019 Page 65 Page 67 1 - Paul Benjamin - 1 - Paul Benjamin - 2 Old Logging Road and called Mr. Murray, what did you 2 Q. That printout from the MLS, you would 3 say to him? 3 have seen that? 4 A. I don't recall specifically what I said 4 A. On the screen, yes. 5 to him, but I made an offer on the home. 5 Q. Were you aware that Angela Kessel was a 6 Q. What was the offer? 6 Houlihan/Lawrence agent? 7 A. I believe it was one five, one point 7 A. Was I aware at the time that she was? 8 five million. 8 Q. Yes. 9 Q. So you were offering above list price? 9 A. I believe so. Yes, I believe so, 10 A. Yes. 10 because I believe Brian said he wouldn't be there, 11 Q. Did you discuss that offer with Mr. 11 but Angela would; and I believe he said she was a 12 Murray, or is that something you came to on your own? 12 colleague. 13 A. I don't recall. I had a conversation 13 Q. So you knew that Brian worked with Ms. 14 over the phone when I left. My understanding is that 14 Kessel? 15 the house already had an offer on it. 15 A. Yes. 16 Q. Did you have an understanding that it 16 Q. And you knew that before you toured the 17 had an accepted offer on it? 17 property at 16 Old Logging Road? 18 A. I believe Brian shared that. 18 A. Yes. 19 Q. Given your real estate experience in 19 Q. So after you conveyed this one-point- 20 New York, did you have an understanding that until a 20 five-million-dollar offer to Mr. Murray, when did you 21 property is under contract, either party can walk 21 next speak with Mr. Murray? 22 away? 22 A. I don't recall the next time we spoke, 23 A. I would say that would be my general 23 exactly when that was. It was three years ago. I 24 thinking, yes. 24 don't remember exactly when it was we spoke again. 25 Q. So you're making an offer on a 25 Q. It's hard to remember all the Page 66 Page 68 1 - Paul Benjamin - 1 - Paul Benjamin - 2 property, trying to displace a buyer that's had an 2 conversations three years ago; isn't it, right? 3 accepted offer? 3 A. That's fair, yes. 4 A. Essentially. 4 Q. So at some point did Mr. Murray -- if 5 Q. So you wanted your offer to become 5 you'd turn to paragraph 314 of Exhibit 10 -- at some 6 competitive, presumably? 6 point did Mr. Murray tell you that he conveyed the 7 A. Yes, that's the idea. 7 offer to Ms. Kessel, but that the seller was prepared 8 Q. And did you have an understanding that 8 to move forward with the other bidder's offer? 9 for the seller to walk away from what was already an 9 A. Yes. 10 accepted offer, you would have to come in above that 10 Q. And Mr. Murray, or your complaint 11 offer? 11 states, that the other offer was for less money, and 12 A. That's how bidding works, yes. 12 subject to a mortgage contingency; do you see that? 13 Q. Common sense; right? 13 A. Yes. 14 A. Yes. 14 Q. Was your offer a cash offer? 15 Q. So did Mr. Murray share with you about 15 A. Yes. 16 where you would need to be to have your offer 16 Q. What was your response to Mr. Murray 17 accepted? 17 when he told you that the seller was prepared to move 18 A. I don't recall the sequence of events 18 forward with the first bidder's offer? 19 between my offer and the accepted price. 19 A. Specifically, I'm not sure; but 20 Q. Did you ever see like a listing sheet 20 generally, as it states in the complaint, whether he 21 on 16 Old Logging Road? 21 thought the seller would accept one point six. 22 A. A listing sheet? I only saw what was 22 Q. Did Mr. Murray suggest to you that you 23 in MLS. But if I forwarded back to them, yes, I'm 23 offer one point six, or is that something you came up 24 sure that I saw a picture of Old Logging -- a listing 24 with on your own? 25 of Old Logging. So -- 25 A. It's a number I came up with on my own. 17 (Pages 65 to 68) DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024 August 15, 2019 Page 69 Page 71 1 - Paul Benjamin - 1 - Paul Benjamin - 2 Q. Was your thinking that you needed your 2 A. I don't know. 3 offer to be significantly better to get the seller to 3 Q. But ultimately, at the end of the day, 4 move off the acceptable offer that he already had? 4 you got what you wanted done, which was a closed 5 A. Yes; I believe I conferred, and I 5 deal; right? 6 asked, "Would that do it, do you think that would do 6 A. Yes. 7 it?" And which he believed -- he concurred, and said 7 Q. Were you at some point asked to provide 8 he would go back and come back and let me know. 8 proof of funds to purchase 16 Old Logging Road? 9 Q. Did Mr. Murray pressure you to increase 9 A. Yes. 10 your offer? 10 (Whereupon, Defendant's Exhibit Number 11 A. I didn't feel pressured to increase my 11 24, an email dated 4/18/16, consisting of 12 offer by Mr. Murray. 12 two pages, was marked for identification as 13 Q. That's something you just did because 13 of this date.) 14 you wanted the property? 14 Q. Mr. Benjamin, the reporter handed you 15 A. That's correct. 15 Exhibit 24. Do you recognize exhibit 24, as a proof 16 Q. And, in fact, you got the property? 16 of funds that you provided at the owner's attorney's 17 A. "Voila," yes. 17 request in connection with the purchase of 16 Old 18 Q. So that worked out for you, right? 18 Logging Road? 19 A. I don't know how you spell "voila" -- 19 A. Yes. 20 but yes, it did work out for me. 20 Q. If you turn to the back, do you see a 21 Q. And I think you testified earlier you 21 UBS information regarding the account of Paul Ricardo 22 have been happy at 16 Old Logging Road? 22 Benjamin with a value of approximately five million, 23 A. Yes. 23 three hundred and nine, five hundred thirty-four 24 Q. And moving to paragraph 316 of Exhibit 24 point forty-six dollars? 25 10, the complaint alleges that you intended to retain 25 A. Yes. Page 70 Page 72 1 - Paul Benjamin - 1 - Paul Benjamin - 2 a New York City real estate attorney. Is that the 2 Q. Is that a brokerage account? 3 Mr. Nerenberg we discussed earlier? 3 A. Yes. 4 A. Yes. 4 Q. And were those the funds that you used 5 Q. Mr. Murray conveyed to you that the 5 to purchase 16 Old Logging Road? 6 seller was wary of working with an attorney not from 6 A. Funds were drawn from this bank, yes. 7 Westchester County? 7 Q. Did Mr. Murray at one point send you a 8 A. Yes. 8 disclosure form identifying the nature of his 9 Q. Do you have reason to doubt the 9 representation? 10 veracity of that statement? 10 MR. VEST: Objection. Vague. 11 A. No. 11 A. Mr. Murray sent me a form. I don't 12 Q. Mr. Murray -- 12 recall exactly what the email said, but it had forms 13 A. No, at the time, no. 13 attached to the email. But what specifically are you 14 Q. Mr. Murray referred you to Frank Veith; 14 asking me, though? 15 is that correct? 15 Q. I'm asking you at some point Mr. Murray 16 A. That's correct. 16 sent you a form disclosing and discussing the nature 17 Q. What was your experience like working 17 of his representation? 18 with Mr. Veith? 18 A. He sent me a form, a disclosure form; 19 A. Transactional. 19 did he send me a disclosure form? Yes. 20 Q. Was he competent? 20 (Whereupon, Defendant's Exhibit Number 21 A. He got the job done. 21 25, an email dated 4/20/16, consisting of 22 Q. He got the deal closed, right? 22 two pages, was marked for identification as 23 A. Yes. 23 of this date.) 24 Q. Was he more or less expensive than Mr. 24 Q. Sir, the reporter has placed in front 25 Nerenberg? 25 of you what's been marked Exhibit 25; do you 18 (Pages 69 to 72) DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024 August 15, 2019 Page 73 Page 75 1 - Paul Benjamin - 1 - Paul Benjamin - 2 recognize Exhibit 25? 2 represent the seller. You knew Angela Kessel was 3 A. Yes. 3 representing the seller, we already established that? 4 Q. Exhibit 25 is actually an email from 4 A. Okay. 5 you to Mr. Murray returning a signed form; correct? 5 Q. Right? 6 A. Yes. 6 A. Yes. 7 Q. You signed that form voluntarily; 7 Q. And you knew that both Mr. Murray and 8 right? 8 Ms. Kessel worked for Houlihan/Lawrence; right? 9 A. Yes. 9 A. Yes. 10 Q. No one twisted your arm to do that, was 10 Q. So turning back up to this bold, 11 there? 11 capitalized "Dual Agent With Designated Sales Agents" 12 A. I understand "voluntary." 12 section in Exhibit 25, let's read a little further. 13 Q. So if we turn to the form that you 13 "A sales agent works under the 14 signed. In Exhibit 25, you see that the form says it 14 supervision of the real estate broker. With the 15 was provided to you by Brian Murray, Houlihan/ 15 informed consent of the buyer and the seller in 16 Lawrence; that's right? 16 writing, the designated sales agent for the buyer 17 A. Yes. 17 will function as the buyer's agent representing the 18 Q. You also see that checked under "acting 18 interests of and advocating on behalf of the 19 in the interest of the," is "Dual agent with 19 buyer." 20 designated sales agents," do you see that in Exhibit 20 That's Brian, right? 21 25? 21 MR. VEST: Objection. 22 A. Yes. 22 A. Yes. 23 Q. Bear with me for a moment. 23 Q. "And the designated sales agent for the 24 If you go up above to the bold, 24 seller will function as the seller's agent 25 capitalized section on "Dual Agent with Designated 25 representing the interests of and advocating on Page 74 Page 76 1 - Paul Benjamin - 1 - Paul Benjamin - 2 Sales Agents," do you see that? 2 behalf of the seller in the negotiations between the 3 A. I see that. 3 buyer and the seller." 4 Q. Let's read a little bit here. "If the 4 That's Angela, right? 5 buyer and seller provide their informed consent in 5 A. Yes. 6 writing, the principals and the real estate broker 6 Q. And here it is: "A designated sales 7 who represents both paries of a dual agent may 7 agent cannot provide the full range of fiduciary 8 designate a sales agent to represent the buyer and 8 duties to the buyer or seller. The designated sales 9 another sales agent to represent the seller to 9 agent must explain that like the dual agent under 10 negotiated the purchase and sale of real estate." 10 whose supervision they function, they cannot provide 11 Do you see that? 11 undivided loyalty. A buyer or seller should 12 A. I see it. 12 carefully consider the possible consequence of a 13 Q. Okay. You were the buyer in this 13 dual-agency relationship with designated sales agents 14 transaction; right? 14 before agreeing to such representation." 15 A. That's correct. 15 Did I read that correctly? 16 Q. If you go below, above your signature, 16 A. You did it well, yes. 17 you see, "If dual agent with designated sales agents 17 Q. "A seller or buyer may provide advance 18 is indicated above:," Brian S. Murray is appointed to 18 informed consent to dual agency with designated sales 19 represent the buyer; that's you; right? 19 agents by indicating the same on this form." 20 A. Yes. 20 Does that finish it out? 21 Q. And you knew that Brian S. Murray was 21 A. Yes. 22 appointed to represented you? 22 Q. Did you ask Mr. Murray any questions 23 MR. VEST: Objection. Vague. 23 about this form? 24 A. Yes, I was working with Brian then. 24 A. Nope. 25 Q. And Angela Kessel was appointed to 25 Q. You just returned the form with your 19 (Pages 73 to 76) DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1758 RECEIVED NYSCEF: 03/11/2024 August 15, 2019 Page 77 Page 79 1 - Paul Benjamin - 1 - Paul Benjamin - 2 signature here in Exhibit 25; right? 2 A. No. Absent of me, you mean? 3 A. That's correct. 3 Q. Right. 4 Q. And you returned the form, Exhibit 25, 4 A. No, no. 5 before you signed the contract to purchase 16 Old 5 Q. When did the sale of 16 Old Logging 6 Logging Road; did you not? 6 close? 7 A. Yes, I believe so. I would have to go 7 A. July 5th. 8 back and look at the timeline on that, I don't recall 8 Q. So that you closed the purchase of 16 9 exactly. 9 Old Logging Road on July 5th, and you signed Exhibit 10 The question is whether I signed this 10 25 on April 20th of 2016? 11 before I signed the contract? 11 A. Yes. 12 Q. Correct. 12 Q. In the intervening months between when 13 A. That's correct. 13 you signed Exhibit 25 and the date of the closing, 14 Q. Presumably, you read Exhibit 15 (sic) 14 did you raise any objections to Mr. Murray's 15 before you signed it? 15 continued representation of you in connection with 16 A. I didn't. 16 the purchase of 16 Old Logging Road? 17 Q. You didn't read it? 17 A. No. 18 A. No. 18 Q. You let him continue to work on your 19 Q. So this is a one-point-six-million- 19 behalf; right? 20 dollar cash purchase, and you didn't take the time to 20 A. Yes. 21 read a single page that bears your signature? 21 Q. There were presumably milestones 22 A. That's correct. 22 associated with the transaction between April 20th, 23 Q. Presumably, you read Exhibit 25 before 23 2016 and July 5th, 2016; right? 24 you signed it? 24 A. Yes. 25 Let's get a clear record. 25 Q. Perhaps inspection, contracts, all Page 78 Page 80 1 - Paul Benjamin - 1 - Paul Benjamin - 2 A. Yes. 2 those details, walk-throughs, things that have to 3 MR. VEST: Can you read back the 3 happen before a real estate transaction closes? 4 original question and answer. 4 A. Yes. 5 (Whereupon, the requested testimony was 5 Q. And you let Mr. Murray continue working 6 read back by the reporter.) 6 on all those details during the time between April 7 MR. VEST: So if you could just ask the 7 20th, 2016 and July 5th, 2016; right? 8 question again. 8 A. Yes. 9 Q. Presumably, you read Exhibit 25 before 9 Q. And, in fact, you raised no complaint 10 you signed it? 10 at all about Mr. Murray's representation until you 11 A. No. Presumably, I read this disclosure 11 reached out to Mr. Vest in connection with reading an 12 before I signed it? 12 article; right? 13 Q. Correct. 13 A. Yes -- repeat that question, please. 14 A. No. 14 Q. You raised no complaint about Mr. 15 Q. So for a one-point-six-million-dollar 15 Murray's representation between the date of signing 16 cash purchase, you didn't take the time to read a 16 Exhibit 25, April 10th, 2016 until you reached out to 17 single-page document that bears your signature? 17 Mr. Vest after reading an article? 18 A. That's what I said, so let's correct 18 A. Between -- between this date and 19 that. 19 closing, I had no complaints with Mr. Murray. 20 Q. And you were represented by counsel in 20 Q. Did you at some point develop 21 connection with this transaction as well; correct? 21 complaints about Mr. Murray before you read the 22 A. Yes. 22 article that Mr. Schneidermesser shared with you? 23 Q. Do you have any knowledge as to 23 A. No. 24 discussions or disclosures that Mr. Murray may have 24 Q. Have you spoken to anyone aside from 25 made to Mr. Veith? 25 your counsel about this lawsuit? 20 (Pages 77 to 80) DEITZ Court Reporting... A Lexitas Company 800-678-0166