Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
HL EXHIBIT 8
DEPOSITION OF THOMAS CUSACK SEPTEMBER
28, 2023
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
Page 1
1 VIDEO TELECONFERENCE DEPOSITION
THOMAS CUSACK
2 VOLUME 1
3
4
5 STATE OF NEW YORK
SUPREME COURT : COUNTY OF WESTCHESTER
6
7 ----------------------------------------
PAMELA GOLDSTEIN,
8 ELLYN & TONY BERK, As Administrators
of the Estate of Winifred Berk,
9 And PAUL BENJAMIN, on behalf of
themselves and all others similarly
10 situated,
Plaintiffs,
11
- vs - Index No.
12 60767/2018
13 HOULIHAN/LAWRENCE INC.,
14 Defendant.
----------------------------------------
15
16
17 Video deposition of THOMAS CUSACK, taken
18 pursuant to Notice under Article 31 of the Civil
19 Practice Law and Rules, at the Cusack Center, 5500
20
21 Main Street, Williamsville, New York, on
22
23 September 28, 2023, commencing at 12:00 p.m.,
24
25 before MEGAN TITUS, Notary Public.
Veritext Legal Solutions
www.veritext.com 888-391-3376
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
Page 2 Page 4
1 1 Thomas Cusack
2 APPEARANCES: MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C. 2 Court, County of Westchester, to be used in the
3 By JEREMY C. VEST, ESQ., 3 matter of Pamela Goldstein et. al. versus Houlihan
666 Third Avenue, 4 Lawrence, Inc.
4 New York, New York 10017,
(212) 692-6718, 5 This testimony is taking place at the Cusack
5 jvest@mintz.com, 6 Center, 5500 Main Street, Williamsville, New York,
Appearing for Plaintiffs.
7 on September 28, 2023, and is commencing at the
6
MacGILL P.C., 8 time of 12:01 as indicated on the video screen.
7 By SCOTT E. MURRAY, ESQ., 9 The court reporter and notary public, who is
scott.murray@macgilllaw.com and
8 MACKENZIE N. THOMPSON, ESQ.,
10 from Veritext Legal Solutions, is Megan Titus. My
mackenzie.thompson@macgilllaw.com, 11 name is Tyler Rahner. I am the video technician;
9 Inland Building, 12 and I am with the same firm.
156 E. Market Street, Suite 1200,
10 Indianapolis, Indianapolis 46204, 13 Counsel for the plaintiffs will now
(317) 721-1253, 14 introduce themselves followed by counsel for the
11 Appearing for Defendant. 15 defendants. And the reporter will then swear in
12 PRESENT: TYLER Z. RAHNER, Videographer
13 16 the witness.
14 17 MR. VEST: Jeremy Vest with the Mintz, Levin
15
18 Firm on behalf of the plaintiffs.
16
17 19 MR. MURRAY: This is Scott Murray from
18 20 MacGill P.C. on behalf of Houlihan Lawrence. And I
19
20
21 also have Mackenzie Thompson is here as well from
21 22 our office.
22 23 MR. CUSACK: All right. Mackenzie.
23
24 24 THOMAS CUSACK, 5500 Main Street, Suite 104,
25 25 Williamsville, New York, after being duly called
Page 3 Page 5
1 Thomas Cusack 1 Thomas Cusack
2 The following were marked for Identification: 2 and sworn, whose identity was confirmed by
3 DEFENDANT'S EXH. Affidavit of Thomas Cusack, 3 government-issued documentation, testified as
4 300 11/1/21 4 follows:
5 DEFENDANT'S EXH. Appendix A - Leading HL 5 EXAMINATION
6 301 agents gave perfunctory & 6 BY MR. MURRAY:
7 misleading disclosures 7 Q. Good afternoon, Mr. Cusack.
8 DEFENDANT'S EXH. Expert Report of Thomas F. 8 A. Good afternoon.
9 302 Cusack 9 Q. As -- we met each other a few moments
10 DEFENDANT'S EXH. Collection of 28 tables (61 10 ago, but just for the record, my name is Scott
11 303 pages) 11 Murray. I'm an attorney representing Houlihan
12 12 Lawrence in this case.
13 THE REPORTER: How are we doing billing 13 If at any time today you need to take a
14 today? Are you each purchasing a copy? Is one of 14 break for any reason, just let me know. I'd be
15 you supplying the other? 15 happy to accommodate that?
16 MR. MURRAY: We'll be purchasing a copy for 16 A. I appreciate that.
17 us. We're not -- we'll each be purchasing our own 17 Q. Now, sir, you've been engaged to
18 copies. 18 provide expert testimony in this case by the
19 MR. VEST: Okay. 19 plaintiffs?
20 THE REPORTER: Mr. Cusack, did you want the 20 A. Yes.
21 opportunity to review the transcript? 21 Q. And how did you become engaged? How
22 MR. CUSACK: Yes, I'd like to. 22 did you get involved in this case?
23 THE VIDEOGRAPHER: This will begin the video 23 A. I was contacted by the -- by the lawyer
24 recorded testimony of Thomas Cusack taken for a 24 representing the plaintiffs in -- in and around
25 case to be tried in the State of New York Supreme 25 2018 and asked if I had an interest in -- in
2 (Pages 2 - 5)
Veritext Legal Solutions
www.veritext.com 888-391-3376
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
Page 6 Page 8
1 Thomas Cusack 1 Thomas Cusack
2 testifying about the agency. 2 appendix, correct?
3 Q. And why did you decide to get involved? 3 A. Yes. But I wanted to make sure that if
4 A. Because it's -- it's -- it's a case 4 we're going to reference it, I wanted to make sure
5 that on its basis confirms what I have been doing 5 this is -- because I see -- I see gave perfunctory
6 as an instructor for the past 33 -- starting the 6 disclosures. And then I see that the Houlihan
7 34th year -- trying to communicate to consumers -- 7 Lawrence agency policy and the I see agent company
8 or to licensees their responsibilities. 8 operations guidelines.
9 So this was a case that when I was asked 9 And I was just identifying it as -- as in
10 about the -- being a witness, I felt that it -- it 10 the -- in the context of my affidavit. So there's
11 was an opportunity for me to -- to confirm what 11 a -- there are guidelines and then there are other
12 I've been teaching for 34 years. 12 documents here that I -- that I had access to. All
13 Q. And have you served as an expert 13 right. Okay.
14 witness before? 14 Q. All right.
15 A. Only once on a very narrow, specific -- 15 A. All right. I don't want to -- I don't
16 narrow issue. It was a salesperson in relation to 16 want to be rushing through it.
17 the broker. And that was all. And I -- there was 17 Q. And then if you look, we marked as
18 no document. I didn't provide any -- any written 18 Defendant's Exhibit 302 a copy of your report. Do
19 testimony. I just answered questions of the 19 you see that?
20 lawyers for the plaintiff and the defendant. 20 A. Yes.
21 Q. And are you serving as an expert 21 Q. And --
22 witness in any other cases right now? 22 A. There's a -- there's a divider here.
23 A. I am not. 23 Q. Yeah. I was going to tell you what
24 Q. Okay. Now, you've provided both an 24 those are.
25 affidavit in this case and a report; is that 25 So we've included -- with your report, you
Page 7 Page 9
1 Thomas Cusack 1 Thomas Cusack
2 correct? 2 provided two attachments. An Attachment A and an
3 A. That is correct. 3 Attachment B; is that correct?
4 Q. And I've put four documents in front of 4 A. That they are identified that way and
5 you, which we've marked starting at Defendant's 5 to the document I would have to -- I'm taking your
6 Exhibit 300. Is that a copy of the affidavit you 6 word on this --
7 prepared in this case? No. 300. 7 Q. Sure.
8 A. No. 300. This was in 2021. Yes. That 8 A. -- but I -- I remember the documents as
9 is a copy of it. I haven't -- I haven't had a 9 documents that I was responsible for reading for
10 chance to go through it, but I'm assuming that it's 10 making sure that they were consistent with what I
11 what I -- it's what I gave the Court. 11 was saying. So I'm -- I'm -- I'm interested in
12 Q. Okay. And then we've marked as 12 knowing the interest of these. This is my -- this
13 Defendant's Exhibit 301 an appendix that was 13 is -- I know this one, the Law of Agency that I
14 provided with your affidavit -- 14 teach. And the other document is -- this is from
15 A. Yes. 15 the -- this is the document -- the unpublished
16 Q. -- is that correct? 16 manuscript.
17 A. Yes. 17 Q. Okay.
18 Q. And does that look like a copy of the 18 A. Okay. I'm good -- I'm good with that
19 appendix? 19 now I know what they are.
20 A. This does look like a copy of the 20 Q. Okay.
21 appendix, but let me just go through it. 21 A. But to look at them just as you give
22 Q. Sir, just to move this along -- I 22 them to me ...
23 appreciate you're looking at each page, but -- 23 Q. Sure.
24 A. But I -- I just -- 24 A. You've been patient giving me an
25 Q. -- generally, it looks like your 25 opportunity to look at them.
3 (Pages 6 - 9)
Veritext Legal Solutions
www.veritext.com 888-391-3376
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
Page 10 Page 12
1 Thomas Cusack 1 Thomas Cusack
2 Q. Yeah. You've been deposed once in this 2 then I was contacted by Mr. Vest to now work on a
3 case already, correct? 3 compilation of a testimony before the Court. Which
4 A. Yes. If that -- that was what we did. 4 I have with the affidavit and the document for the
5 I forget when it was but -- 5 testimony.
6 Q. Sure. 6 I've never done these before, so when --
7 A. -- Mr. MacGill from your -- 7 understanding that I needed some guidance about
8 Q. Yes. 8 how -- how -- how I should produce this.
9 A. -- your law firm was the one who did 9 Q. Okay. And so how did you go about
10 it. 10 creating the report that we've marked as
11 Q. Right. So -- and that was in 11 Exhibit 302?
12 connection with the class certification 12 A. Well, first of all -- and I'm going to
13 proceedings. Do you recall that? 13 break it down -- first of all, I went back and read
14 A. It was, yes. 14 my affidavit and needed clarification from
15 Q. Okay. And in your first deposition, 15 Mr. Vest. What's the relationship of my affidavit
16 you described the process that you went through to 16 to my testimony? So then we began to realize --
17 create your affidavit that we marked as 17 well, I was -- I was sort of taken aback when
18 Exhibit 300, correct? 18 Mr. Vest had to certify that I didn't exceed 7,000
19 A. Yes, yes. 19 words on my affidavit.
20 Q. And did you follow that same general 20 So I'm thinking how is the Court and how
21 process to create your report that we've marked as 21 will I represent to the Court an -- an expansion of
22 Exhibit 302? 22 my affidavit. So I needed guidance in that regard.
23 MR. VEST: Objection. That calls for 23 And I got -- and Mr. Vest and I talked extensively
24 speculation. 24 about what was going to be needed to, in fact, put
25 Counsel, if you're going to ask him about 25 together a report.
Page 11 Page 13
1 Thomas Cusack 1 Thomas Cusack
2 his prior testimony, you may want to show it to 2 All of which -- all of which is a
3 him. 3 confirmation of my journey of 33 years.
4 THE WITNESS: Okay. 4 Compilation of all the things I have access to, all
5 BY MR. MURRAY: 5 of the things I discussed about that I had to make
6 Q. Well, I'm just asking whether you 6 sure that everything that was in here was a
7 followed the same process to generate the report we 7 confirmation -- a confirmation of me and what I
8 marked as Exhibit 302 that you followed when you 8 teach.
9 created the affidavit that's been marked as 9 Q. Okay. In your earlier deposition in
10 Exhibit 300? 10 connection with the preparation of the affidavit, I
11 MR. VEST: Objection. Vague and ambiguous. 11 believe you testified that you had conversations
12 THE WITNESS: So when you say the same 12 with Mr. Vest. And then based on those
13 process -- 13 conversations, you received a draft of the
14 BY MR. MURRAY: 14 affidavit that you reviewed to confirm reflected
15 Q. Sure. 15 your opinions; is that correct?
16 A. -- what is your recollection -- can I 16 MR. VEST: Objection. Mischaracterizes the
17 ask? I -- what -- 17 witness's testimony.
18 Q. Well, let me just ask a different 18 Again, Counselor, if you're going to ask him
19 question. 19 about his prior testimony from two years ago, I
20 A. Okay. That would be wonderful. 20 would ask that you provide the witness.
21 Q. What process did you go through to 21 BY MR. VEST:
22 create the report that's marked as Exhibit 302? 22 Q. You can go ahead and answer the
23 A. Well, I -- upon -- upon confirmation 23 question, sir.
24 that after -- after this affidavit was sent and the 24 A. Okay.
25 Court decided that they were going to proceed, that 25 MR. VEST: If the court reporter could read
4 (Pages 10 - 13)
Veritext Legal Solutions
www.veritext.com 888-391-3376
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
Page 14 Page 16
1 Thomas Cusack 1 Thomas Cusack
2 back the question. 2 Q. Okay. And so did somebody from your
3 THE REPORTER: Sure. 3 center here at Cusack Professional Center -- did
4 (The above-requested question was then read 4 somebody here type the report for you?
5 by the reporter.) 5 A. No. The type -- no.
6 THE WITNESS: I think it was -- if I 6 Q. Okay.
7 understand what you mean by draft, it was already 7 A. The type was -- there were things that
8 completed when I got it? That's not how I would 8 I -- that I came up with that I would -- I would
9 characterize the draft. 9 say to my business partner because -- can you read
10 The draft was sections of what I was going 10 this? And does it make sense to you? Would you
11 to put in my testimony pulled out from the 11 type it up and let me refer -- let me be able to
12 affidavit. So I -- I would -- my questions would 12 look at it.
13 be -- so in relation to this -- in relation -- 13 But that they -- that the references and the
14 MR. VEST: Mr. Cusack, I'm just going to 14 things that were in it were -- were documents
15 caution you not to divulge any communications you 15 that -- that I wanted to make sure that there were
16 or I may have had in connection either with the 16 things that when I said something that was going to
17 preparation of your 2021 affidavit or your 2023 17 be presented to the Court as part of my testimony,
18 report. 18 that it wasn't just something that I plucked from
19 You may testify to any specific instructions 19 air. It was something that over the course of the
20 you were given or an assignment you were given, but 20 years had -- had been -- had been a composite of
21 I would caution you that communications between you 21 all the things from the early 1990s to the present.
22 and I beyond that are protected by the 22 Everything that -- that -- that the -- the
23 attorney-client privilege. 23 standards are communicated to me about how the
24 But apologies for the interruption, but I 24 licensees are going to be instructed about the duty
25 did not want to -- for there to any be disclosure 25 for them to, in fact, disclose properly.
Page 15 Page 17
1 Thomas Cusack 1 Thomas Cusack
2 of attorney-client privilege information. 2 Q. So did someone from Mr. Vest's office
3 BY MR. MURRAY: 3 provide you with the typed up draft of the report?
4 Q. You can continue your answer, sir. 4 A. I -- I -- I don't know who sent it to
5 A. Okay. That -- I -- what I would do 5 me. I don't know. But it came for my
6 then is I would look at the different aspects of 6 confirmation.
7 the affidavit. And -- and I would then read the 7 Q. It came --
8 documents again that I had with the affidavit. And 8 A. Well, I want to tell you, though -- let
9 then -- I would then say now -- I would want to 9 me back up. Let me back up.
10 know to what extent I giving the testimony would 10 This was -- this was -- it would be e-mailed
11 have to communicate that in a written document to 11 to my business partner who would download it and
12 the Court. And -- and I got general guidance about 12 give it to me. And then I would read it. I would
13 it. 13 go over it and read it and say yes. And then --
14 But then after we would talk and I would 14 then we would have confidential communication about
15 explain what I was going to do, Mr. Vest would then 15 it.
16 send it back to me and say, is this basically what 16 But nothing -- nothing in it -- nothing in
17 you said. 17 it was something that I did not confirm, accept,
18 Q. So let's focus on the report. The 2023 18 realize that it's something that has to be there
19 report. 19 because I'm speaking in my testimony. But there's
20 A. Okay. 20 got to be -- there's got to be some validation.
21 Q. Did you type that report up yourself? 21 And those were documents that confirmed what I was
22 A. I did not. 22 saying.
23 Q. Okay. 23 Q. Okay. So, sir, I'd like to move this
24 A. I can't -- so you understand, I do not 24 forward a little bit. But just so I understand the
25 type. 25 process, to prepare the report that we've marked as
5 (Pages 14 - 17)
Veritext Legal Solutions
www.veritext.com 888-391-3376
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
Page 18 Page 20
1 Thomas Cusack 1 Thomas Cusack
2 Exhibit 302, a copy -- a draft was provided to your 2 Q. A first draft.
3 business partner by someone associated with 3 A. Of any part of it?
4 Plaintiff's counsel; is that fair? 4 Q. Correct.
5 MR. VEST: Objection. Mischaracterizes the 5 A. Not the whole thing, a specific part.
6 witness's testimony -- 6 Q. Yes.
7 MR. MURRAY: I -- 7 A. I would say that -- that -- that -- if
8 MR. VEST: -- and oversimplifies -- 8 I -- if I could answer that.
9 MR. MURRAY: Mr. Vest? 9 MR. VEST: Objection. Vague and ambiguous.
10 MR. VEST: -- the process -- 10 THE WITNESS: Okay. So ask -- then can
11 MR. MURRAY: Mr. Vest? 11 you -- can you tell me what -- how you're
12 MR. VEST: -- that the witness is attempting 12 interpreting what I said about there were
13 to describe. 13 discussions about what would go in there?
14 MR. MURRAY: Just object to form. I asked 14 So based upon the discussions, then I would
15 him if it was fair. 15 then say, okay, now -- now, how does it go together
16 MR. VEST: I'm not going to let you 16 in the -- in the -- in the written form. In the
17 mischaracterize the witness's testimony. 17 written form.
18 MR. MURRAY: I asked him if -- that's why I 18 So then after it goes together in the
19 asked him if it was a fair characterization. I'm 19 written form, then it would be -- it would be then
20 trying to shorten -- 20 e-mailed to me; and I would review it. And there
21 MR. VEST: We're not going to -- 21 would be things about it that I would say I don't
22 MR. MURRAY: Jeremy? 22 want to say that. This is not something that
23 MR. VEST: -- he's not here to testify -- 23 I'm -- that I'm communicating with. But that --
24 MR. MURRAY: Jeremy? 24 that is how this thing evolved.
25 MR. VEST: -- about your characterizations 25 Q. Okay. Now, the first attachment to
Page 19 Page 21
1 Thomas Cusack 1 Thomas Cusack
2 of his testimony. 2 your report, the -- this unpublished document from
3 MR. MURRAY: He will -- 3 the Department of State?
4 MR. VEST: If you have a question, ask it. 4 A. Mm-hmm.
5 MR. MURRAY: -- he will testify. I'm 5 Q. That's a document that you provided?
6 allowed to -- 6 A. Yes.
7 MR. VEST: Not to your characterizations -- 7 Q. And that's a document that, as far as
8 MR. MURRAY: I'm allowed to ask -- 8 you know, has never been published by the
9 MR. VEST: -- of his testimony. 9 Department of State; is that correct?
10 MR. MURRAY: -- leading questions. I am 10 A. That's right. As far I know it hasn't
11 allowed to ask leading questions. 11 been. But it was written were by the -- the
12 MR. VEST: A leading question is not -- 12 general counsel of the Department of State.
13 MR. MURRAY: It absolutely is. 13 Q. And it has a copyright date on it of
14 MR. VEST: -- is my statement of your 14 1991; is that correct?
15 testimony from two years ago or from ten minutes 15 A. That's correct.
16 ago correct. The record will speak for itself. 16 Q. And have you ever seen a copy of that
17 BY MR. MURRAY: 17 document distributed anywhere else?
18 Q. So, Mr. Cusack, is it correct that 18 MR. VEST: Objection. Vague and ambiguous.
19 someone associated with Plaintiff's counsel 19 THE WITNESS: Have I ever seen it?
20 provided a draft of Exhibit 302 to your business 20 BY MR. MURRAY:
21 partner? Is that correct? 21 Q. Yes.
22 A. Let me ask you, if I can, are you 22 A. No. It wouldn't be -- no, I'm not
23 saying the draft was the finished product? 23 looking for their document.
24 Q. No. A draft. 24 Q. And Exhibit B, the Attachment B to your
25 A. Of any part of it? 25 report --
6 (Pages 18 - 21)
Veritext Legal Solutions
www.veritext.com 888-391-3376
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
Page 22 Page 24
1 Thomas Cusack 1 Thomas Cusack
2 A. Oh, okay. 2 part that would be necessary to make sure that
3 Q. -- are -- are those the training 3 people do it correctly.
4 materials that you used -- 4 Q. Okay. Let me ask you this: The
5 A. Those are the -- 5 materials that are included as Attachment B to your
6 Q. -- at your center that relate to agency 6 report, are these materials that you provide to
7 law and to dual agency? 7 your students?
8 MR. VEST: Mr. Cusack, I make -- I would ask 8 A. Yes.
9 you to get a copy of Exhibit B in front of you 9 Q. Are there any other materials that you
10 before you answer. 10 provide to your students that relate to the Law of
11 THE WITNESS: Okay. I'm getting it right 11 Agency besides what you've included as
12 now. What happened to it? What happened to that 12 Attachment B?
13 separator? Oh, there it is. Okay. 13 A. I'd have to -- this is all of the
14 Okay. So now, please repeat your question. 14 material that's in our folder. Agency disclosure,
15 BY MR. MURRAY: 15 substantive contact, and -- this is -- this is not.
16 Q. Yup. My question is: Are these copies 16 This is not provided to licensees getting -- taking
17 of the training materials that you use here at your 17 the pre-licensing course. This is not provided to
18 center to teach the Law of Agency and concepts 18 license wannabes.
19 relating to dual agency to your students? 19 Q. Okay. And you're referring
20 A. The concept of agency. I'm tasked with 20 specifically to the page that --
21 the responsibility of covering agency from a wide 21 A. To real estate best practices of agency
22 perspective. There is a part of agency that I have 22 and fair housing.
23 to touch on is dual agency and dual agency with 23 Q. Okay. So --
24 designated sales associates. 24 A. So this is a continuing education
25 But the syllabus requires me to explain what 25 class.
Page 23 Page 25
1 Thomas Cusack 1 Thomas Cusack
2 is an agent, what is a client, what is the law, all 2 Q. Okay. Is this a division then
3 those things. How -- what are the different types 3 between -- because these were materials that were
4 of agencies, how are they created, what are the 4 provided to us with your report. So are you saying
5 different types of listings, how are they -- how 5 that starting with this page that says real estate
6 are they canceled. All of this stuff becomes part 6 best practices agency and fair housing, that this
7 of the ten hours that's part of that training. 7 is now a different set of materials.
8 So what I've got to be doing is just helping 8 A. This is an expansion. This is for --
9 them to understand by seeing examples of it. And 9 this is for licensees who after they get their
10 just for them to get their mind around the 10 license, within was first two years of their
11 complexity of the Law of Agency. 11 licensing, they have to take continuing ed. So
12 Q. And are these the training materials 12 taking continuing ed, part of it is required that
13 that you use to do that? 13 in the first cycle of renewing your license, you
14 A. They're not the training. This is the 14 must take two hours of agency. Subsequent --
15 syllabus material. This is material -- if I were 15 subsequent after your -- after your first cycle you
16 training them in the execution of the agency 16 have to take one hour.
17 disclosure form, which is -- which is the 17 So -- but we all have to teach fair housing
18 responsibility of the broker, then I would use 18 as part of it. And they have to take that for
19 different things. 19 three hours. So this was the best practices that
20 But I have an obligation to make sure that 20 we now -- people who have been practicing
21 the syllabus tells me these -- these licensees who 21 for two -- two years.
22 come out of this class have to know this, this, 22 Q. Okay. So the first portion of
23 this, this, and this. And proficiency at being 23 Attachment B are the materials that you provide to
24 able to explain agency and dual agency is -- is -- 24 your students in connection the pre-licensing
25 is part of it, but not -- not a major part. The 25 course; is that fair?
7 (Pages 22 - 25)
Veritext Legal Solutions
www.veritext.com 888-391-3376
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024
Page 26 Page 28
1 Thomas Cusack 1 Thomas Cusack
2 A. That's fair. 2 licensees to NYSAR's advanced informed consent to
3 Q. And then starting with this page that 3 dual agency. And advanced -- advanced consent to
4 refers to fair housing these are materials that you 4 dual agency with designated sales associate. And
5 provide in connection with the continuing education 5 we talk about it. And we talk about have they ever
6 course that you teach? 6 seen the form before and what does the form
7 A. Yes. 7 indicate.
8 Q. Okay. And are there any other written 8 Q. And do you provide a copy of the NYSAR
9 materials relating to agency that you provided to 9 forms to your students in the broker's course?
10 your students in either the pre-licensing course or 10 A. We make copies of it and give it out.
11 the continuing education course? 11 Q. All right. Any other written
12 A. My -- there would be -- when we -- when 12 materials --
13 we're teaching the broker's course, which is a 13 A. I didn't write that. These are things
14 different course, which people have had to be 14 that I have written that I hand out. But
15 practicing for a couple years, then it's a much -- 15 sometimes, I will access other material. But
16 a much greater in depth discussion of it. And 16 sometimes, I have to be very careful and caveat in
17 that's -- that's a -- that's the broker's 17 handing out other material that when I look at the
18 responsibility. They're wannabe brokers. And then 18 entire part of it, I have to make notes about this
19 we talk about the responsibility of the broker in 19 is -- this is not correct or this is not consistent
20 the training. 20 with the standards.
21 MR. VEST: Mr. Cusack, I would just counsel 21 So I -- but that's -- that's simply that
22 you need to listen carefully to Counsel's question. 22 I -- I want them to have something that they
23 Counsel asked whether there were any additional 23 could -- they can read and go back to. But I also
24 written materials that were provided. 24 have to make sure that -- that we discuss when
25 THE WITNESS: At all -- 25 there are things that are of -- of difference. A
Page 27 Page 29
1 Thomas Cusack 1 Thomas Cusack
2 BY MR. MURRAY: 2 different representation or a different
3 Q. Related to agency. 3 interpretation. Then we have to discuss that to
4 A. Other than textbook and discussion of 4 make sure that it's consistent with the standard.
5 textbook. 5 Q. The materials that are attached as
6 Q. What textbook are you talking about? 6 Exhibit B to your report, are those materials that
7 A. We're using a broker's course Dearborn 7 you've drafted?
8 Financial Publishing, Edition 13. 8 A. These?
9 Q. And you use -- what course do you use 9 Q. Yes.
10 that in? 10 A. Yes.
11 A. The broker's course. Broker's course. 11 Q. And have those materials been reviewed
12 The people who want to get their broker's license. 12 by anyone at the Department of State?
13 Q. And you haven't provided a copy of that 13 A. We submit the -- we submit our
14 with your materials? 14 documents to the Department of State for their
15 A. I did not. 15 approval.
16 Q. Any other written materials relating to 16 Q. All right. And so the materials that
17 agency? 17 are attached as Exhibit B that you use in
18 A. That I hand out? 18 connection with your course are materials that you
19 Q. That you hand out in any of the courses 19 drafted and submitted to the Department of State
20 that you teach? 20 for approval?
21 A. No -- no further material. 21 A. Yes.
22 Q. Now, you mentioned a few moments ago -- 22 Q. And the Department of State approved
23 A. Wait. Let me back up one second. 23 these materials?
24 Q. Sure. 24 A. Yeah. I don't know what procedure they
25 A. In the broker's course, I introduce the 25 use, but they stamp it.
8 (Pages 26 - 29)
Veritext Legal Solutions
www.veritext.com 888-391-3376
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM
Preview
FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 HL EXHIBIT 8 DEPOSITION OF THOMAS CUSACK SEPTEMBER 28, 2023 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 Page 1 1 VIDEO TELECONFERENCE DEPOSITION THOMAS CUSACK 2 VOLUME 1 3 4 5 STATE OF NEW YORK SUPREME COURT : COUNTY OF WESTCHESTER 6 7 ---------------------------------------- PAMELA GOLDSTEIN, 8 ELLYN & TONY BERK, As Administrators of the Estate of Winifred Berk, 9 And PAUL BENJAMIN, on behalf of themselves and all others similarly 10 situated, Plaintiffs, 11 - vs - Index No. 12 60767/2018 13 HOULIHAN/LAWRENCE INC., 14 Defendant. ---------------------------------------- 15 16 17 Video deposition of THOMAS CUSACK, taken 18 pursuant to Notice under Article 31 of the Civil 19 Practice Law and Rules, at the Cusack Center, 5500 20 21 Main Street, Williamsville, New York, on 22 23 September 28, 2023, commencing at 12:00 p.m., 24 25 before MEGAN TITUS, Notary Public. Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 Page 2 Page 4 1 1 Thomas Cusack 2 APPEARANCES: MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. 2 Court, County of Westchester, to be used in the 3 By JEREMY C. VEST, ESQ., 3 matter of Pamela Goldstein et. al. versus Houlihan 666 Third Avenue, 4 Lawrence, Inc. 4 New York, New York 10017, (212) 692-6718, 5 This testimony is taking place at the Cusack 5 jvest@mintz.com, 6 Center, 5500 Main Street, Williamsville, New York, Appearing for Plaintiffs. 7 on September 28, 2023, and is commencing at the 6 MacGILL P.C., 8 time of 12:01 as indicated on the video screen. 7 By SCOTT E. MURRAY, ESQ., 9 The court reporter and notary public, who is scott.murray@macgilllaw.com and 8 MACKENZIE N. THOMPSON, ESQ., 10 from Veritext Legal Solutions, is Megan Titus. My mackenzie.thompson@macgilllaw.com, 11 name is Tyler Rahner. I am the video technician; 9 Inland Building, 12 and I am with the same firm. 156 E. Market Street, Suite 1200, 10 Indianapolis, Indianapolis 46204, 13 Counsel for the plaintiffs will now (317) 721-1253, 14 introduce themselves followed by counsel for the 11 Appearing for Defendant. 15 defendants. And the reporter will then swear in 12 PRESENT: TYLER Z. RAHNER, Videographer 13 16 the witness. 14 17 MR. VEST: Jeremy Vest with the Mintz, Levin 15 18 Firm on behalf of the plaintiffs. 16 17 19 MR. MURRAY: This is Scott Murray from 18 20 MacGill P.C. on behalf of Houlihan Lawrence. And I 19 20 21 also have Mackenzie Thompson is here as well from 21 22 our office. 22 23 MR. CUSACK: All right. Mackenzie. 23 24 24 THOMAS CUSACK, 5500 Main Street, Suite 104, 25 25 Williamsville, New York, after being duly called Page 3 Page 5 1 Thomas Cusack 1 Thomas Cusack 2 The following were marked for Identification: 2 and sworn, whose identity was confirmed by 3 DEFENDANT'S EXH. Affidavit of Thomas Cusack, 3 government-issued documentation, testified as 4 300 11/1/21 4 follows: 5 DEFENDANT'S EXH. Appendix A - Leading HL 5 EXAMINATION 6 301 agents gave perfunctory & 6 BY MR. MURRAY: 7 misleading disclosures 7 Q. Good afternoon, Mr. Cusack. 8 DEFENDANT'S EXH. Expert Report of Thomas F. 8 A. Good afternoon. 9 302 Cusack 9 Q. As -- we met each other a few moments 10 DEFENDANT'S EXH. Collection of 28 tables (61 10 ago, but just for the record, my name is Scott 11 303 pages) 11 Murray. I'm an attorney representing Houlihan 12 12 Lawrence in this case. 13 THE REPORTER: How are we doing billing 13 If at any time today you need to take a 14 today? Are you each purchasing a copy? Is one of 14 break for any reason, just let me know. I'd be 15 you supplying the other? 15 happy to accommodate that? 16 MR. MURRAY: We'll be purchasing a copy for 16 A. I appreciate that. 17 us. We're not -- we'll each be purchasing our own 17 Q. Now, sir, you've been engaged to 18 copies. 18 provide expert testimony in this case by the 19 MR. VEST: Okay. 19 plaintiffs? 20 THE REPORTER: Mr. Cusack, did you want the 20 A. Yes. 21 opportunity to review the transcript? 21 Q. And how did you become engaged? How 22 MR. CUSACK: Yes, I'd like to. 22 did you get involved in this case? 23 THE VIDEOGRAPHER: This will begin the video 23 A. I was contacted by the -- by the lawyer 24 recorded testimony of Thomas Cusack taken for a 24 representing the plaintiffs in -- in and around 25 case to be tried in the State of New York Supreme 25 2018 and asked if I had an interest in -- in 2 (Pages 2 - 5) Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 Page 6 Page 8 1 Thomas Cusack 1 Thomas Cusack 2 testifying about the agency. 2 appendix, correct? 3 Q. And why did you decide to get involved? 3 A. Yes. But I wanted to make sure that if 4 A. Because it's -- it's -- it's a case 4 we're going to reference it, I wanted to make sure 5 that on its basis confirms what I have been doing 5 this is -- because I see -- I see gave perfunctory 6 as an instructor for the past 33 -- starting the 6 disclosures. And then I see that the Houlihan 7 34th year -- trying to communicate to consumers -- 7 Lawrence agency policy and the I see agent company 8 or to licensees their responsibilities. 8 operations guidelines. 9 So this was a case that when I was asked 9 And I was just identifying it as -- as in 10 about the -- being a witness, I felt that it -- it 10 the -- in the context of my affidavit. So there's 11 was an opportunity for me to -- to confirm what 11 a -- there are guidelines and then there are other 12 I've been teaching for 34 years. 12 documents here that I -- that I had access to. All 13 Q. And have you served as an expert 13 right. Okay. 14 witness before? 14 Q. All right. 15 A. Only once on a very narrow, specific -- 15 A. All right. I don't want to -- I don't 16 narrow issue. It was a salesperson in relation to 16 want to be rushing through it. 17 the broker. And that was all. And I -- there was 17 Q. And then if you look, we marked as 18 no document. I didn't provide any -- any written 18 Defendant's Exhibit 302 a copy of your report. Do 19 testimony. I just answered questions of the 19 you see that? 20 lawyers for the plaintiff and the defendant. 20 A. Yes. 21 Q. And are you serving as an expert 21 Q. And -- 22 witness in any other cases right now? 22 A. There's a -- there's a divider here. 23 A. I am not. 23 Q. Yeah. I was going to tell you what 24 Q. Okay. Now, you've provided both an 24 those are. 25 affidavit in this case and a report; is that 25 So we've included -- with your report, you Page 7 Page 9 1 Thomas Cusack 1 Thomas Cusack 2 correct? 2 provided two attachments. An Attachment A and an 3 A. That is correct. 3 Attachment B; is that correct? 4 Q. And I've put four documents in front of 4 A. That they are identified that way and 5 you, which we've marked starting at Defendant's 5 to the document I would have to -- I'm taking your 6 Exhibit 300. Is that a copy of the affidavit you 6 word on this -- 7 prepared in this case? No. 300. 7 Q. Sure. 8 A. No. 300. This was in 2021. Yes. That 8 A. -- but I -- I remember the documents as 9 is a copy of it. I haven't -- I haven't had a 9 documents that I was responsible for reading for 10 chance to go through it, but I'm assuming that it's 10 making sure that they were consistent with what I 11 what I -- it's what I gave the Court. 11 was saying. So I'm -- I'm -- I'm interested in 12 Q. Okay. And then we've marked as 12 knowing the interest of these. This is my -- this 13 Defendant's Exhibit 301 an appendix that was 13 is -- I know this one, the Law of Agency that I 14 provided with your affidavit -- 14 teach. And the other document is -- this is from 15 A. Yes. 15 the -- this is the document -- the unpublished 16 Q. -- is that correct? 16 manuscript. 17 A. Yes. 17 Q. Okay. 18 Q. And does that look like a copy of the 18 A. Okay. I'm good -- I'm good with that 19 appendix? 19 now I know what they are. 20 A. This does look like a copy of the 20 Q. Okay. 21 appendix, but let me just go through it. 21 A. But to look at them just as you give 22 Q. Sir, just to move this along -- I 22 them to me ... 23 appreciate you're looking at each page, but -- 23 Q. Sure. 24 A. But I -- I just -- 24 A. You've been patient giving me an 25 Q. -- generally, it looks like your 25 opportunity to look at them. 3 (Pages 6 - 9) Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 Page 10 Page 12 1 Thomas Cusack 1 Thomas Cusack 2 Q. Yeah. You've been deposed once in this 2 then I was contacted by Mr. Vest to now work on a 3 case already, correct? 3 compilation of a testimony before the Court. Which 4 A. Yes. If that -- that was what we did. 4 I have with the affidavit and the document for the 5 I forget when it was but -- 5 testimony. 6 Q. Sure. 6 I've never done these before, so when -- 7 A. -- Mr. MacGill from your -- 7 understanding that I needed some guidance about 8 Q. Yes. 8 how -- how -- how I should produce this. 9 A. -- your law firm was the one who did 9 Q. Okay. And so how did you go about 10 it. 10 creating the report that we've marked as 11 Q. Right. So -- and that was in 11 Exhibit 302? 12 connection with the class certification 12 A. Well, first of all -- and I'm going to 13 proceedings. Do you recall that? 13 break it down -- first of all, I went back and read 14 A. It was, yes. 14 my affidavit and needed clarification from 15 Q. Okay. And in your first deposition, 15 Mr. Vest. What's the relationship of my affidavit 16 you described the process that you went through to 16 to my testimony? So then we began to realize -- 17 create your affidavit that we marked as 17 well, I was -- I was sort of taken aback when 18 Exhibit 300, correct? 18 Mr. Vest had to certify that I didn't exceed 7,000 19 A. Yes, yes. 19 words on my affidavit. 20 Q. And did you follow that same general 20 So I'm thinking how is the Court and how 21 process to create your report that we've marked as 21 will I represent to the Court an -- an expansion of 22 Exhibit 302? 22 my affidavit. So I needed guidance in that regard. 23 MR. VEST: Objection. That calls for 23 And I got -- and Mr. Vest and I talked extensively 24 speculation. 24 about what was going to be needed to, in fact, put 25 Counsel, if you're going to ask him about 25 together a report. Page 11 Page 13 1 Thomas Cusack 1 Thomas Cusack 2 his prior testimony, you may want to show it to 2 All of which -- all of which is a 3 him. 3 confirmation of my journey of 33 years. 4 THE WITNESS: Okay. 4 Compilation of all the things I have access to, all 5 BY MR. MURRAY: 5 of the things I discussed about that I had to make 6 Q. Well, I'm just asking whether you 6 sure that everything that was in here was a 7 followed the same process to generate the report we 7 confirmation -- a confirmation of me and what I 8 marked as Exhibit 302 that you followed when you 8 teach. 9 created the affidavit that's been marked as 9 Q. Okay. In your earlier deposition in 10 Exhibit 300? 10 connection with the preparation of the affidavit, I 11 MR. VEST: Objection. Vague and ambiguous. 11 believe you testified that you had conversations 12 THE WITNESS: So when you say the same 12 with Mr. Vest. And then based on those 13 process -- 13 conversations, you received a draft of the 14 BY MR. MURRAY: 14 affidavit that you reviewed to confirm reflected 15 Q. Sure. 15 your opinions; is that correct? 16 A. -- what is your recollection -- can I 16 MR. VEST: Objection. Mischaracterizes the 17 ask? I -- what -- 17 witness's testimony. 18 Q. Well, let me just ask a different 18 Again, Counselor, if you're going to ask him 19 question. 19 about his prior testimony from two years ago, I 20 A. Okay. That would be wonderful. 20 would ask that you provide the witness. 21 Q. What process did you go through to 21 BY MR. VEST: 22 create the report that's marked as Exhibit 302? 22 Q. You can go ahead and answer the 23 A. Well, I -- upon -- upon confirmation 23 question, sir. 24 that after -- after this affidavit was sent and the 24 A. Okay. 25 Court decided that they were going to proceed, that 25 MR. VEST: If the court reporter could read 4 (Pages 10 - 13) Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 Page 14 Page 16 1 Thomas Cusack 1 Thomas Cusack 2 back the question. 2 Q. Okay. And so did somebody from your 3 THE REPORTER: Sure. 3 center here at Cusack Professional Center -- did 4 (The above-requested question was then read 4 somebody here type the report for you? 5 by the reporter.) 5 A. No. The type -- no. 6 THE WITNESS: I think it was -- if I 6 Q. Okay. 7 understand what you mean by draft, it was already 7 A. The type was -- there were things that 8 completed when I got it? That's not how I would 8 I -- that I came up with that I would -- I would 9 characterize the draft. 9 say to my business partner because -- can you read 10 The draft was sections of what I was going 10 this? And does it make sense to you? Would you 11 to put in my testimony pulled out from the 11 type it up and let me refer -- let me be able to 12 affidavit. So I -- I would -- my questions would 12 look at it. 13 be -- so in relation to this -- in relation -- 13 But that they -- that the references and the 14 MR. VEST: Mr. Cusack, I'm just going to 14 things that were in it were -- were documents 15 caution you not to divulge any communications you 15 that -- that I wanted to make sure that there were 16 or I may have had in connection either with the 16 things that when I said something that was going to 17 preparation of your 2021 affidavit or your 2023 17 be presented to the Court as part of my testimony, 18 report. 18 that it wasn't just something that I plucked from 19 You may testify to any specific instructions 19 air. It was something that over the course of the 20 you were given or an assignment you were given, but 20 years had -- had been -- had been a composite of 21 I would caution you that communications between you 21 all the things from the early 1990s to the present. 22 and I beyond that are protected by the 22 Everything that -- that -- that the -- the 23 attorney-client privilege. 23 standards are communicated to me about how the 24 But apologies for the interruption, but I 24 licensees are going to be instructed about the duty 25 did not want to -- for there to any be disclosure 25 for them to, in fact, disclose properly. Page 15 Page 17 1 Thomas Cusack 1 Thomas Cusack 2 of attorney-client privilege information. 2 Q. So did someone from Mr. Vest's office 3 BY MR. MURRAY: 3 provide you with the typed up draft of the report? 4 Q. You can continue your answer, sir. 4 A. I -- I -- I don't know who sent it to 5 A. Okay. That -- I -- what I would do 5 me. I don't know. But it came for my 6 then is I would look at the different aspects of 6 confirmation. 7 the affidavit. And -- and I would then read the 7 Q. It came -- 8 documents again that I had with the affidavit. And 8 A. Well, I want to tell you, though -- let 9 then -- I would then say now -- I would want to 9 me back up. Let me back up. 10 know to what extent I giving the testimony would 10 This was -- this was -- it would be e-mailed 11 have to communicate that in a written document to 11 to my business partner who would download it and 12 the Court. And -- and I got general guidance about 12 give it to me. And then I would read it. I would 13 it. 13 go over it and read it and say yes. And then -- 14 But then after we would talk and I would 14 then we would have confidential communication about 15 explain what I was going to do, Mr. Vest would then 15 it. 16 send it back to me and say, is this basically what 16 But nothing -- nothing in it -- nothing in 17 you said. 17 it was something that I did not confirm, accept, 18 Q. So let's focus on the report. The 2023 18 realize that it's something that has to be there 19 report. 19 because I'm speaking in my testimony. But there's 20 A. Okay. 20 got to be -- there's got to be some validation. 21 Q. Did you type that report up yourself? 21 And those were documents that confirmed what I was 22 A. I did not. 22 saying. 23 Q. Okay. 23 Q. Okay. So, sir, I'd like to move this 24 A. I can't -- so you understand, I do not 24 forward a little bit. But just so I understand the 25 type. 25 process, to prepare the report that we've marked as 5 (Pages 14 - 17) Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 Page 18 Page 20 1 Thomas Cusack 1 Thomas Cusack 2 Exhibit 302, a copy -- a draft was provided to your 2 Q. A first draft. 3 business partner by someone associated with 3 A. Of any part of it? 4 Plaintiff's counsel; is that fair? 4 Q. Correct. 5 MR. VEST: Objection. Mischaracterizes the 5 A. Not the whole thing, a specific part. 6 witness's testimony -- 6 Q. Yes. 7 MR. MURRAY: I -- 7 A. I would say that -- that -- that -- if 8 MR. VEST: -- and oversimplifies -- 8 I -- if I could answer that. 9 MR. MURRAY: Mr. Vest? 9 MR. VEST: Objection. Vague and ambiguous. 10 MR. VEST: -- the process -- 10 THE WITNESS: Okay. So ask -- then can 11 MR. MURRAY: Mr. Vest? 11 you -- can you tell me what -- how you're 12 MR. VEST: -- that the witness is attempting 12 interpreting what I said about there were 13 to describe. 13 discussions about what would go in there? 14 MR. MURRAY: Just object to form. I asked 14 So based upon the discussions, then I would 15 him if it was fair. 15 then say, okay, now -- now, how does it go together 16 MR. VEST: I'm not going to let you 16 in the -- in the -- in the written form. In the 17 mischaracterize the witness's testimony. 17 written form. 18 MR. MURRAY: I asked him if -- that's why I 18 So then after it goes together in the 19 asked him if it was a fair characterization. I'm 19 written form, then it would be -- it would be then 20 trying to shorten -- 20 e-mailed to me; and I would review it. And there 21 MR. VEST: We're not going to -- 21 would be things about it that I would say I don't 22 MR. MURRAY: Jeremy? 22 want to say that. This is not something that 23 MR. VEST: -- he's not here to testify -- 23 I'm -- that I'm communicating with. But that -- 24 MR. MURRAY: Jeremy? 24 that is how this thing evolved. 25 MR. VEST: -- about your characterizations 25 Q. Okay. Now, the first attachment to Page 19 Page 21 1 Thomas Cusack 1 Thomas Cusack 2 of his testimony. 2 your report, the -- this unpublished document from 3 MR. MURRAY: He will -- 3 the Department of State? 4 MR. VEST: If you have a question, ask it. 4 A. Mm-hmm. 5 MR. MURRAY: -- he will testify. I'm 5 Q. That's a document that you provided? 6 allowed to -- 6 A. Yes. 7 MR. VEST: Not to your characterizations -- 7 Q. And that's a document that, as far as 8 MR. MURRAY: I'm allowed to ask -- 8 you know, has never been published by the 9 MR. VEST: -- of his testimony. 9 Department of State; is that correct? 10 MR. MURRAY: -- leading questions. I am 10 A. That's right. As far I know it hasn't 11 allowed to ask leading questions. 11 been. But it was written were by the -- the 12 MR. VEST: A leading question is not -- 12 general counsel of the Department of State. 13 MR. MURRAY: It absolutely is. 13 Q. And it has a copyright date on it of 14 MR. VEST: -- is my statement of your 14 1991; is that correct? 15 testimony from two years ago or from ten minutes 15 A. That's correct. 16 ago correct. The record will speak for itself. 16 Q. And have you ever seen a copy of that 17 BY MR. MURRAY: 17 document distributed anywhere else? 18 Q. So, Mr. Cusack, is it correct that 18 MR. VEST: Objection. Vague and ambiguous. 19 someone associated with Plaintiff's counsel 19 THE WITNESS: Have I ever seen it? 20 provided a draft of Exhibit 302 to your business 20 BY MR. MURRAY: 21 partner? Is that correct? 21 Q. Yes. 22 A. Let me ask you, if I can, are you 22 A. No. It wouldn't be -- no, I'm not 23 saying the draft was the finished product? 23 looking for their document. 24 Q. No. A draft. 24 Q. And Exhibit B, the Attachment B to your 25 A. Of any part of it? 25 report -- 6 (Pages 18 - 21) Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 Page 22 Page 24 1 Thomas Cusack 1 Thomas Cusack 2 A. Oh, okay. 2 part that would be necessary to make sure that 3 Q. -- are -- are those the training 3 people do it correctly. 4 materials that you used -- 4 Q. Okay. Let me ask you this: The 5 A. Those are the -- 5 materials that are included as Attachment B to your 6 Q. -- at your center that relate to agency 6 report, are these materials that you provide to 7 law and to dual agency? 7 your students? 8 MR. VEST: Mr. Cusack, I make -- I would ask 8 A. Yes. 9 you to get a copy of Exhibit B in front of you 9 Q. Are there any other materials that you 10 before you answer. 10 provide to your students that relate to the Law of 11 THE WITNESS: Okay. I'm getting it right 11 Agency besides what you've included as 12 now. What happened to it? What happened to that 12 Attachment B? 13 separator? Oh, there it is. Okay. 13 A. I'd have to -- this is all of the 14 Okay. So now, please repeat your question. 14 material that's in our folder. Agency disclosure, 15 BY MR. MURRAY: 15 substantive contact, and -- this is -- this is not. 16 Q. Yup. My question is: Are these copies 16 This is not provided to licensees getting -- taking 17 of the training materials that you use here at your 17 the pre-licensing course. This is not provided to 18 center to teach the Law of Agency and concepts 18 license wannabes. 19 relating to dual agency to your students? 19 Q. Okay. And you're referring 20 A. The concept of agency. I'm tasked with 20 specifically to the page that -- 21 the responsibility of covering agency from a wide 21 A. To real estate best practices of agency 22 perspective. There is a part of agency that I have 22 and fair housing. 23 to touch on is dual agency and dual agency with 23 Q. Okay. So -- 24 designated sales associates. 24 A. So this is a continuing education 25 But the syllabus requires me to explain what 25 class. Page 23 Page 25 1 Thomas Cusack 1 Thomas Cusack 2 is an agent, what is a client, what is the law, all 2 Q. Okay. Is this a division then 3 those things. How -- what are the different types 3 between -- because these were materials that were 4 of agencies, how are they created, what are the 4 provided to us with your report. So are you saying 5 different types of listings, how are they -- how 5 that starting with this page that says real estate 6 are they canceled. All of this stuff becomes part 6 best practices agency and fair housing, that this 7 of the ten hours that's part of that training. 7 is now a different set of materials. 8 So what I've got to be doing is just helping 8 A. This is an expansion. This is for -- 9 them to understand by seeing examples of it. And 9 this is for licensees who after they get their 10 just for them to get their mind around the 10 license, within was first two years of their 11 complexity of the Law of Agency. 11 licensing, they have to take continuing ed. So 12 Q. And are these the training materials 12 taking continuing ed, part of it is required that 13 that you use to do that? 13 in the first cycle of renewing your license, you 14 A. They're not the training. This is the 14 must take two hours of agency. Subsequent -- 15 syllabus material. This is material -- if I were 15 subsequent after your -- after your first cycle you 16 training them in the execution of the agency 16 have to take one hour. 17 disclosure form, which is -- which is the 17 So -- but we all have to teach fair housing 18 responsibility of the broker, then I would use 18 as part of it. And they have to take that for 19 different things. 19 three hours. So this was the best practices that 20 But I have an obligation to make sure that 20 we now -- people who have been practicing 21 the syllabus tells me these -- these licensees who 21 for two -- two years. 22 come out of this class have to know this, this, 22 Q. Okay. So the first portion of 23 this, this, and this. And proficiency at being 23 Attachment B are the materials that you provide to 24 able to explain agency and dual agency is -- is -- 24 your students in connection the pre-licensing 25 is part of it, but not -- not a major part. The 25 course; is that fair? 7 (Pages 22 - 25) Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 03/11/2024 Page 26 Page 28 1 Thomas Cusack 1 Thomas Cusack 2 A. That's fair. 2 licensees to NYSAR's advanced informed consent to 3 Q. And then starting with this page that 3 dual agency. And advanced -- advanced consent to 4 refers to fair housing these are materials that you 4 dual agency with designated sales associate. And 5 provide in connection with the continuing education 5 we talk about it. And we talk about have they ever 6 course that you teach? 6 seen the form before and what does the form 7 A. Yes. 7 indicate. 8 Q. Okay. And are there any other written 8 Q. And do you provide a copy of the NYSAR 9 materials relating to agency that you provided to 9 forms to your students in the broker's course? 10 your students in either the pre-licensing course or 10 A. We make copies of it and give it out. 11 the continuing education course? 11 Q. All right. Any other written 12 A. My -- there would be -- when we -- when 12 materials -- 13 we're teaching the broker's course, which is a 13 A. I didn't write that. These are things 14 different course, which people have had to be 14 that I have written that I hand out. But 15 practicing for a couple years, then it's a much -- 15 sometimes, I will access other material. But 16 a much greater in depth discussion of it. And 16 sometimes, I have to be very careful and caveat in 17 that's -- that's a -- that's the broker's 17 handing out other material that when I look at the 18 responsibility. They're wannabe brokers. And then 18 entire part of it, I have to make notes about this 19 we talk about the responsibility of the broker in 19 is -- this is not correct or this is not consistent 20 the training. 20 with the standards. 21 MR. VEST: Mr. Cusack, I would just counsel 21 So I -- but that's -- that's simply that 22 you need to listen carefully to Counsel's question. 22 I -- I want them to have something that they 23 Counsel asked whether there were any additional 23 could -- they can read and go back to. But I also 24 written materials that were provided. 24 have to make sure that -- that we discuss when 25 THE WITNESS: At all -- 25 there are things that are of -- of difference. A Page 27 Page 29 1 Thomas Cusack 1 Thomas Cusack 2 BY MR. MURRAY: 2 different representation or a different 3 Q. Related to agency. 3 interpretation. Then we have to discuss that to 4 A. Other than textbook and discussion of 4 make sure that it's consistent with the standard. 5 textbook. 5 Q. The materials that are attached as 6 Q. What textbook are you talking about? 6 Exhibit B to your report, are those materials that 7 A. We're using a broker's course Dearborn 7 you've drafted? 8 Financial Publishing, Edition 13. 8 A. These? 9 Q. And you use -- what course do you use 9 Q. Yes. 10 that in? 10 A. Yes. 11 A. The broker's course. Broker's course. 11 Q. And have those materials been reviewed 12 The people who want to get their broker's license. 12 by anyone at the Department of State? 13 Q. And you haven't provided a copy of that 13 A. We submit the -- we submit our 14 with your materials? 14 documents to the Department of State for their 15 A. I did not. 15 approval. 16 Q. Any other written materials relating to 16 Q. All right. And so the materials that 17 agency? 17 are attached as Exhibit B that you use in 18 A. That I hand out? 18 connection with your course are materials that you 19 Q. That you hand out in any of the courses 19 drafted and submitted to the Department of State 20 that you teach? 20 for approval? 21 A. No -- no further material. 21 A. Yes. 22 Q. Now, you mentioned a few moments ago -- 22 Q. And the Department of State approved 23 A. Wait. Let me back up one second. 23 these materials? 24 Q. Sure. 24 A. Yeah. I don't know what procedure they 25 A. In the broker's course, I introduce the 25 use, but they stamp it. 8 (Pages 26 - 29) Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 03/11/2024 11:36 AM