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FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024
EXHIBIT 76
FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024
Page 1
1
2 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
3 ------------------------------------------X
PAMELA GOLDSTEIN, ELLYN & TONY BERK, as
4 Administrators of the Estate of Winifred
Berk, and PAUL BENJAMIN, on behalf of
5 themselves and all others similarly
situated,
6
PLAINTIFFS,
7
-against- Index No.:
8 60767/2018
9 HOULIHAN/LAWRENCE, INC.,
10 DEFENDANT.
------------------------------------------X
11
12 DATE: May 10, 2023
13 TIME: 1:32 P.M.
14
15
16 VIDEO RECORDED EXAMINATION
17 BEFORE TRIAL of the Plaintiff, ELLYN BERK,
18 taken by the Defendant, pursuant to a Court
19 Order, held at the offices of DELBELLO
20 DONNELLAN WEINGARTEN WISE & WIEDERKEHR,
21 LLP, One North Lexington Avenue, 11th
22 Floor, White Plains, New York 10601, before
23 JANNA LIRTSMAN, a Notary Public of the
24 State of New York.
25
1
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FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024
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1 E. BERK
2 understood what that meant if it had not
3 been really spelled out to me --
4 Q. Let me ask you this question.
5 Did you understand that
6 Mr. Bello was representing you as the
7 seller?
8 A. Yes.
9 Q. And that was your understanding
10 from the beginning?
11 A. Yes.
12 Q. And in his capacity as your
13 representative as the seller, you expected
14 him to work in your interests?
15 A. Yes.
16 Q. And you expected him to provide
17 advice to you?
18 A. Yes.
19 Q. And you expected him to
20 negotiate on your behalf?
21 A. Yes.
22 Q. You expected him to preserve
23 any confidential information that you
24 shared?
25 A. Yes.
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1 E. BERK
2 Q. You expected him to follow any
3 lawful instructions that you gave to him?
4 A. Yes.
5 Q. And you considered all of that
6 to be part of his representing you,
7 correct?
8 A. Yes.
9 Q. Now, when Mr. Bello says in his
10 email that's Exhibit 46 that the buyer's
11 agent is representing them, the buyer, then
12 you understood that Ms. Lagle would be
13 working on the buyer's behalf, correct?
14 MR. VEST: Objection.
15 Mischaracterizes the witness'
16 testimony.
17 A. No. However naive it may
18 sound, I did not -- if I had seen -- if I
19 remembered that statement -- and I don't
20 question it's here. To me, the company of
21 which Mr. Bello was an employee was
22 representing me. And so anything that a
23 colleague of my agent, my Realtor, was
24 doing was in some way supportive of my
25 deal. That may sound overly naive. But
129
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NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024
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1 E. BERK
2 without further explanation to demonstrate
3 how naive, I would not have understood what
4 that meant.
5 Q. When Mr. Bello told you in
6 Exhibit 46 that he was representing you as
7 the seller and Ms. Lagle was representing
8 the buyer, is it your testimony that you
9 interpreted that language to mean that
10 Ms. Lagle was representing you?
11 MR. VEST: Objection.
12 Misstates the witness' testimony.
13 The witness testified --
14 MR. MURRAY: No, no. Stop,
15 Mr. Vest.
16 MR. VEST: You're
17 mischaracterizing the witness'
18 testimony.
19 MR. MURRAY: You have been very
20 good all day and I appreciate it. So
21 please, no speaking objection.
22 MR. VEST: Mischaracterization
23 of the witness' testimony.
24 MR. MURRAY: My question was
25 not a characterization. It was do
130
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1 E. BERK
2 you agree, are you testifying to. It
3 was not a characterization of --
4 MR. VEST: We'll both try to
5 adhere to the standard of conduct
6 that has prevailed all day. And I do
7 appreciate it.
8 Q. Dr. Berk, I'm going to rephrase
9 the question.
10 Are you testifying that when
11 Mr. Bello said to you in Exhibit 46 that he
12 was representing you as the seller and that
13 Ms. Lagle was representing the buyer, that
14 you interpreted that as Ms. Lagle
15 representing you?
16 A. I cannot give a yes or no
17 answer. And I think I've tried to explain
18 my understanding, since I had never been
19 engaged in any kind of Realtor situation.
20 And again, if one works with a company, a
21 law firm, the presumption is -- and you're
22 a client, the presumption is that you are
23 there and you don't have people who are
24 working against your interests in that law
25 firm or company. And I don't -- I did not
131
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1 E. BERK
2 understand at the time the context of a
3 realty agency and that there could be
4 within that agency, what I was paying for
5 was everybody working for my interest, our
6 interest. But actually, there was a
7 potential, potential, for there to be
8 conflicting situations within that that
9 could adversely affect me.
10 Q. I want to distinguish --
11 A. It's very hard for me to say
12 yes or no.
13 Q. And I want to distinguish
14 between what you've learned from the Wall
15 Street Journal article or being involved in
16 this lawsuit after your discussions with
17 plaintiff's counsel, to what you were
18 thinking and what was apparent to you at
19 the time of the transaction in 2014, okay?
20 A. Yes.
21 Q. At the time you received
22 Exhibit 46, do you agree that when
23 Mr. Bello wrote to you that he would be
24 representing you, the owner, and the
25 buyer's agent would be representing the
132
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1 E. BERK
2 buyer, that he was distinguishing between
3 himself and the buyer's agent and who each
4 of them represented?
5 Do you agree with that?
6 MR. VEST: Asked and answered.
7 Calls for speculation.
8 MR. MURRAY: This is a matter
9 of English language.
10 A. I'm trying to explain to you --
11 it's almost embarrassing to explain -- but
12 it's typical of somebody not understanding
13 terminology. Which is that my
14 assumption -- I should say my assumption
15 was everybody is working for me, and the
16 words don't matter, because that's what I'm
17 paying for, and that's what it is.
18 Q. So it's your testimony that in
19 2014, you thought that Ms. Lagle
20 represented you?
21 A. I thought that Houlihan/
22 Lawrence represented me.
23 Q. And I'm asking about Ms. Lagle.
24 Did you think that Ms. Lagle,
25 the agent working with these buyers, who
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NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024
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1 E. BERK
2 you had never met, never talked to, never
3 communicated with, you thought she was
4 representing you?
5 MR. VEST: Objection. Asked
6 and answered.
7 A. I don't know how many other
8 ways in which I can explain it or how silly
9 it may sound --
10 Q. I actually haven't heard you
11 answer the question.
12 MR. VEST: I disagree. She's
13 answered three times. You have now
14 interrupted the witness. She's
15 trying to answer it for you for the
16 fourth time.
17 Dr. Berk, you can answer the
18 question.
19 Q. Your counsel has an opportunity
20 to ask you any questions he wants when I'm
21 done.
22 MR. VEST: It doesn't allow you
23 to interrupt the witness while she
24 was answering your question.
25 MR. MURRAY: It actually does,
134
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FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 EXHIBIT 76 FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 Page 1 1 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER 3 ------------------------------------------X PAMELA GOLDSTEIN, ELLYN & TONY BERK, as 4 Administrators of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of 5 themselves and all others similarly situated, 6 PLAINTIFFS, 7 -against- Index No.: 8 60767/2018 9 HOULIHAN/LAWRENCE, INC., 10 DEFENDANT. ------------------------------------------X 11 12 DATE: May 10, 2023 13 TIME: 1:32 P.M. 14 15 16 VIDEO RECORDED EXAMINATION 17 BEFORE TRIAL of the Plaintiff, ELLYN BERK, 18 taken by the Defendant, pursuant to a Court 19 Order, held at the offices of DELBELLO 20 DONNELLAN WEINGARTEN WISE & WIEDERKEHR, 21 LLP, One North Lexington Avenue, 11th 22 Floor, White Plains, New York 10601, before 23 JANNA LIRTSMAN, a Notary Public of the 24 State of New York. 25 1 Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 Page 128 1 E. BERK 2 understood what that meant if it had not 3 been really spelled out to me -- 4 Q. Let me ask you this question. 5 Did you understand that 6 Mr. Bello was representing you as the 7 seller? 8 A. Yes. 9 Q. And that was your understanding 10 from the beginning? 11 A. Yes. 12 Q. And in his capacity as your 13 representative as the seller, you expected 14 him to work in your interests? 15 A. Yes. 16 Q. And you expected him to provide 17 advice to you? 18 A. Yes. 19 Q. And you expected him to 20 negotiate on your behalf? 21 A. Yes. 22 Q. You expected him to preserve 23 any confidential information that you 24 shared? 25 A. Yes. 128 Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 Page 129 1 E. BERK 2 Q. You expected him to follow any 3 lawful instructions that you gave to him? 4 A. Yes. 5 Q. And you considered all of that 6 to be part of his representing you, 7 correct? 8 A. Yes. 9 Q. Now, when Mr. Bello says in his 10 email that's Exhibit 46 that the buyer's 11 agent is representing them, the buyer, then 12 you understood that Ms. Lagle would be 13 working on the buyer's behalf, correct? 14 MR. VEST: Objection. 15 Mischaracterizes the witness' 16 testimony. 17 A. No. However naive it may 18 sound, I did not -- if I had seen -- if I 19 remembered that statement -- and I don't 20 question it's here. To me, the company of 21 which Mr. Bello was an employee was 22 representing me. And so anything that a 23 colleague of my agent, my Realtor, was 24 doing was in some way supportive of my 25 deal. That may sound overly naive. But 129 Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 Page 130 1 E. BERK 2 without further explanation to demonstrate 3 how naive, I would not have understood what 4 that meant. 5 Q. When Mr. Bello told you in 6 Exhibit 46 that he was representing you as 7 the seller and Ms. Lagle was representing 8 the buyer, is it your testimony that you 9 interpreted that language to mean that 10 Ms. Lagle was representing you? 11 MR. VEST: Objection. 12 Misstates the witness' testimony. 13 The witness testified -- 14 MR. MURRAY: No, no. Stop, 15 Mr. Vest. 16 MR. VEST: You're 17 mischaracterizing the witness' 18 testimony. 19 MR. MURRAY: You have been very 20 good all day and I appreciate it. So 21 please, no speaking objection. 22 MR. VEST: Mischaracterization 23 of the witness' testimony. 24 MR. MURRAY: My question was 25 not a characterization. It was do 130 Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 Page 131 1 E. BERK 2 you agree, are you testifying to. It 3 was not a characterization of -- 4 MR. VEST: We'll both try to 5 adhere to the standard of conduct 6 that has prevailed all day. And I do 7 appreciate it. 8 Q. Dr. Berk, I'm going to rephrase 9 the question. 10 Are you testifying that when 11 Mr. Bello said to you in Exhibit 46 that he 12 was representing you as the seller and that 13 Ms. Lagle was representing the buyer, that 14 you interpreted that as Ms. Lagle 15 representing you? 16 A. I cannot give a yes or no 17 answer. And I think I've tried to explain 18 my understanding, since I had never been 19 engaged in any kind of Realtor situation. 20 And again, if one works with a company, a 21 law firm, the presumption is -- and you're 22 a client, the presumption is that you are 23 there and you don't have people who are 24 working against your interests in that law 25 firm or company. And I don't -- I did not 131 Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 Page 132 1 E. BERK 2 understand at the time the context of a 3 realty agency and that there could be 4 within that agency, what I was paying for 5 was everybody working for my interest, our 6 interest. But actually, there was a 7 potential, potential, for there to be 8 conflicting situations within that that 9 could adversely affect me. 10 Q. I want to distinguish -- 11 A. It's very hard for me to say 12 yes or no. 13 Q. And I want to distinguish 14 between what you've learned from the Wall 15 Street Journal article or being involved in 16 this lawsuit after your discussions with 17 plaintiff's counsel, to what you were 18 thinking and what was apparent to you at 19 the time of the transaction in 2014, okay? 20 A. Yes. 21 Q. At the time you received 22 Exhibit 46, do you agree that when 23 Mr. Bello wrote to you that he would be 24 representing you, the owner, and the 25 buyer's agent would be representing the 132 Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 Page 133 1 E. BERK 2 buyer, that he was distinguishing between 3 himself and the buyer's agent and who each 4 of them represented? 5 Do you agree with that? 6 MR. VEST: Asked and answered. 7 Calls for speculation. 8 MR. MURRAY: This is a matter 9 of English language. 10 A. I'm trying to explain to you -- 11 it's almost embarrassing to explain -- but 12 it's typical of somebody not understanding 13 terminology. Which is that my 14 assumption -- I should say my assumption 15 was everybody is working for me, and the 16 words don't matter, because that's what I'm 17 paying for, and that's what it is. 18 Q. So it's your testimony that in 19 2014, you thought that Ms. Lagle 20 represented you? 21 A. I thought that Houlihan/ 22 Lawrence represented me. 23 Q. And I'm asking about Ms. Lagle. 24 Did you think that Ms. Lagle, 25 the agent working with these buyers, who 133 Veritext Legal Solutions www.veritext.com 888-391-3376 FILED: WESTCHESTER COUNTY CLERK 04/22/2024 11:45 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1949 RECEIVED NYSCEF: 04/22/2024 Page 134 1 E. BERK 2 you had never met, never talked to, never 3 communicated with, you thought she was 4 representing you? 5 MR. VEST: Objection. Asked 6 and answered. 7 A. I don't know how many other 8 ways in which I can explain it or how silly 9 it may sound -- 10 Q. I actually haven't heard you 11 answer the question. 12 MR. VEST: I disagree. She's 13 answered three times. You have now 14 interrupted the witness. She's 15 trying to answer it for you for the 16 fourth time. 17 Dr. Berk, you can answer the 18 question. 19 Q. Your counsel has an opportunity 20 to ask you any questions he wants when I'm 21 done. 22 MR. VEST: It doesn't allow you 23 to interrupt the witness while she 24 was answering your question. 25 MR. MURRAY: It actually does, 134 Veritext Legal Solutions www.veritext.com 888-391-3376