FILED: NEW YORK COUNTY CLERK 05/05/ :50 PM INDEX NO /2013 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/05/2016 EXHIBIT J

Transcription

1 FILED: NEW YORK COUNTY CLERK 05/05/ :50 PM INDEX NO /2013 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/05/2016 EXHIBIT J

2 Page SUPREME COURT OF THE STATE OF NEW YORK 3 COUNTY OF NEW YORK 4 NEW GOLD EQUITIES CORP., ) 5 ) Plaintiff, ) 6 ) v. ) 7 ) VALOC ENTERPRISES, INC., NORMAN) 8 R. BERKOWITZ, NOT IN HIS ) INDIVIDUAL CAPACITY, BUT SOLELY) 9 IN HIS CAPACITY AS THE EXECUTOR) AND TRUSTEE OF THE ESTATE OF ) 10 RHODA MILLER GOLDMAN A/K/A ) RHODA MILLER and THE ESTATE OF ) 11 RHODA MILLER GOLDMAN A/K/A ) RHODA MILLER, ) 12 ) Defendants. ) VOLUME III 16 DEPOSITION OF NORMAN R. BERKOWITZ 17 New York, New York 18 Wednesday, January 20, Reported by: 24 ANNETTE ARLEQUIN, CCR, RPR, CRR, CLR JOB NO

3 Page 34 2 one came in, it had two floors, but I don't 3 recall the name. 4 Q. And Valoc entered into subleases with 5 their subtenants, correct? 6 A. Yes. 7 Q. In writing? 8 A. Yes, of course. 9 Q. Apart from subleases, did Valoc enter 10 into any other agreements with its subtenants? 11 A. Written agreements? 12 Q. Written agreements. 13 A. No. 14 Q. Do you know why all those subleases 15 aren't in Valoc's possession any longer? 16 A. I never saw them. When Mr. Adelman 17 operated the company, he was loose with files. 18 I never saw any of those leases. 19 Q. Is it your testimony that each of 20 these subleases were entered into before 2000? 21 A. All of those leases, yes. 22 Q. Did Valoc maintain rent-rolls or 23 other documents indicating how much money it had 24 received from subtenants and how much money it 25 was owed?

4 Page 35 2 A. What do you mean by rent-rolls? 3 Q. Any type of document that set up an 4 account of how much it was owed and how much it 5 had been paid. 6 A. No. It did provide a rent-roll to 7 the list of -- we had these tax certiorari cases 8 and we provided -- we made a rent-roll and 9 provided it to attorneys who represented us in 10 tax certiorari cases. 11 Q. And when was that? 12 A. Well, we had several of them. 13 Q. When did you create the rent-rolls? 14 A. What year? 15 Q. Yes. 16 A. Well, the last one was for the years or so. I'm not sure. We sent them to the 18 attorneys. 19 Q. And how did you compile those 20 rent-rolls? 21 A. Every month we had the same rent. 22 Q. Okay. And what was that? 23 A. What was the rent? 24 Q. How much rent was Valoc owed on a 25 monthly basis from all its subtenants?

5 Page 36 2 A. I don't recall. 3 MR. GOLDSMITH: I will call for the 4 production of those documents. 5 THE WITNESS: We don't have those 6 documents. 7 MR. GOLDSMITH: They're in the 8 possession of your attorneys, are they not? 9 THE WITNESS: Yes. 10 MR. GOLDSMITH: I would call for the 11 production of those documents. 12 BY MR. GOLDSMITH: 13 Q. Did Valoc maintain accounting 14 journals or accounting worksheets or a general 15 ledger? 16 A. I believe they did. 17 At what time? 18 Q. Between 2007 and A. We did and sometimes we gave them to 20 the accountants who prepared the returns. 21 Q. You gave general ledgers to the 22 accountants or you gave them documents to create 23 a general ledger? 24 A. They maintained a general ledger 25 from, actually from the bank stubs. We had

6 Page 43 2 statements -- 3 A. Well -- 4 Q. -- to be provided in this lawsuit? 5 A. Provided -- 6 Q. Subsequent to the tax foreclosure 7 lawsuit starting in 2009, did Valoc ever ask 8 JPMorgan to provide it with bank statements 9 belonging to Valoc or information financial 10 information to be produced in discovery in that 11 action or in this action? 12 A. In 2009? No. 13 Q. At any time after A. Did they ask JPMorgan to provide who? 15 Q. Did Valoc ask JPMorgan to provide 16 Valoc with bank statements that Valoc could then 17 provide in discovery A. They received bank statements every 19 month. 20 Q. How about previous bank statements? 21 MR. KRAMER: Previous. 22 BY MR. GOLDSMITH: 23 Q. Bank statements that predated A. They never asked JPMorgan for them. 25 Q. You mentioned before certain tax

7 Page 44 2 certiorari proceedings? 3 A. Yes. 4 Q. Is Valoc presently involved in any? 5 A. Yes. 6 Q. How many? 7 MR. KRAMER: Objection. Asked and 8 answered. 9 MR. GOLDSMITH: Just going MR. KRAMER: Just go into it very 11 briefly, but this was covered in depth when 12 Mr. Sherman deposed Mr. Berkowitz. 13 MR. GOLDSMITH: I understand that. 14 I'm trying to establish a foundation here. 15 BY MR. GOLDSMITH: 16 Q. How many? 17 A. I don't recall. 18 Q. Is it more than one? 19 A. Yes. 20 Q. Do you know what the status of them 21 are? 22 A. No. They're in all different they're in different stages. 24 Q. Is Valoc represented by counsel? 25 A. Yes.

8 Page 45 2 Q. Who? 3 A. It's the Padel firm. 4 Q. P-o-d-d -- 5 A. P-a-d-e-l. There are several names, 6 but Padel is the lead. A former congressman. 7 Q. Is that firm being compensated? 8 A. It's on a contingent, contingent 9 basis. 10 Q. And is there a reason that Valoc 11 hasn't provided documents, non-privileged 12 documents relating to those proceedings? 13 A. What documents are you referring to? 14 Q. Any documents concerning the 15 proceedings. 16 A. Whatever documents we had, we turned 17 over. 18 Q. Well, it's fair to say that the law 19 firm that's representing you has documents 20 concerning that proceeding, is it not? 21 A. They have documents, true. 22 Q. And that proceeding represents a 23 potential asset of Valoc, does it not? 24 A. Yes. 25 Q. Okay. So then why haven't those

9 Page 46 2 documents been produced to us? 3 A. They weren't requested. They were 4 not in possession of Valoc. 5 Q. You understand that the document 6 request we served applies not only to documents 7 in Valoc's possession, but also documents in the 8 custody and control, do you not? 9 A. I don't know if MR. GOLDSMITH: We'll make a further 11 request for those documents, which we've 12 already requested. 13 MR. KRAMER: I object to your 14 statement that you already requested those 15 documents. I don't believe you have 16 requested the documents regarding the 17 certiorari proceedings. 18 MR. GOLDSMITH: You can go back and 19 look at the transcript. 20 MR. KRAMER: Look at the document 21 request. 22 BY MR. GOLDSMITH: 23 Q. At any time from 2007 through 2012, 24 were any efforts made by Valoc to sell itself or 25 to enter into a corporate transaction of any

10 Page 47 2 nature? 3 A. What kind of corporate transactions? 4 Q. A merger, an APA? 5 A. What's an APA? 6 Q. Asset Purchase Agreement. 7 A. No. 8 Q. Did Ms. Miller ever make any effort 9 to sell her shares in Valoc during that same 10 time period? 11 A. I don't know what efforts she made. 12 Q. Did Valoc ever attempt to assign its 13 rights under the lease during that time period? 14 A. I don't know. 15 Q. Do you have an understanding as to 16 whether Valoc could do so if it wanted? 17 A. I don't know. 18 Q. You performed work on behalf of Valoc 19 for many years, correct? 20 A. For several years, yes. 21 Q. And in your capacity as an attorney 22 at blab? 23 A. Yes. 24 Q. Did Ballon Stoll maintain files 25 relating to Valoc separate and apart from

11 Page 48 2 Valoc's own files? 3 A. Yes. Whatever work they did, yes. 4 Q. Did you personally maintain files 5 relating to Valoc? 6 A. That would be in the Ballon Stoll 7 files. 8 Q. Is there a reason that documents -- 9 that Ballon Stoll files have not been provided 10 to us? 11 A. I don't think they covered the years 12 you were referring to. 13 Q. So Ballon Stoll didn't do any work 14 for Valoc between 2005 and 2012? 15 MR. KRAMER: And also there's 16 attorney-client privilege there. 17 BY MR. GOLDSMITH: 18 Q. To the extent they're non-privileged 19 documents, is there a reason why they haven't 20 been provided to us? 21 A. As I said, I wasn't with Ballon Stoll 22 in those years, in 2005 until I first 23 returned to Ballon Stoll approximately around 2010, I'm not sure what year I 25 returned, but many of those years I wasn't a

12 Page 49 2 partner at Ballon Stoll. 3 Q. Were you doing work on behalf of 4 Valoc between 2005 and 2012? 5 A. Yes. 6 Q. And by whom were you employed? 7 A. I was at several firms, one of which 8 is out of business now. One firm was Unyck 9 Borenkind & Nadler, which is out of business, 10 and one firm was Roy Kozupsky & Company. 11 Q. And A. Which is also out of business. 13 Q. Did those firms merge into other 14 firms? Did they have successor firms? 15 A. One of the partners retired. I don't 16 know. I think the firms split up. 17 Q. Did those firms maintain files 18 relating to Valoc? 19 A. I don't know. At one time, yes. 20 Q. Did they return those files to Valoc 21 when they closed the business? 22 A. Valoc probably was out of business at 23 that time also. 24 Q. So when did they go out of business? 25 A. Who?

13 Page 50 2 Q. When did the first firm you mentioned 3 go out of business? 4 A. Probably around Q. And when did the second firm you 6 mentioned go out of business? 7 A. I'm not sure. Probably about also. 9 Q. And at any time after the tax 10 foreclosure lawsuit commenced in 2009, did Valoc 11 ask those law firms to provide it with 12 non-privileged documents relating to this relating to that lawsuit? 14 A. In 2009? 15 Q. At any time after A. Well, I don't think they were 17 requested during that time until later. 18 Q. If you could just answer my question, 19 I would appreciate it. 20 A. Can you repeat it? 21 Q. At any time after A. After 2009? 23 Q. -- did Valoc ask those law firms to 24 provide it with documents relating to the tax 25 foreclosure lawsuit?

14 Page 51 2 A. No, not that I know. 3 Q. When you performed work for Valoc, 4 did you have an account at the various 5 firms at which you worked? 6 A. Yes. 7 Q. Did you communicate about Valoc using 8 ? 9 A. No. 10 Q. Never? 11 A. No. 12 Q. And again just for foundation 13 purposes, as you know, Valoc and its accountants 14 both provided tax returns for Valoc for the 15 years 2004 through 2012 and for Ms. Miller for 16 those same years. 17 But neither Valoc, Ms. Miller nor any 18 of the accountants provided any of the backup 19 documentation that they consulted to prepare 20 those returns. 21 And my question is simply, is there a 22 reason that has not been provided to us? 23 A. You have to ask the accountants. 24 Q. Did you provide them any information 25 to prepare the tax returns? Did Valoc provide

15 Page 53 2 after 2009? 3 A. Perhaps. If the statute -- after , I don't think so. I'm not sure. 5 Q. You're not sure? 6 A. No. 7 Q. What about after 2013? 8 A. After 2013, they did not. 9 Q. After the tax foreclosure lawsuit 10 started in 2009, did Valoc ever reach out to its 11 accountants and say in sum and substance, hey, 12 we're going to need this backup information, 13 please don't throw it out? 14 A. No. 15 Q. I asked you about what information 16 Valoc provided to the accountants to perform 17 Valoc's tax returns. 18 What information, if any, did 19 Ms. Miller provide to the accountants? 20 A. You would have to ask the 21 accountants. 22 Q. You prepared Ms. Miller's -- excuse 23 me. 24 You prepared the estate's tax return 25 for 2012, correct?

16 Page 54 2 A. No. 3 Q. Who did? 4 A. The estate is on a fiscal year. 5 Q. Who has prepared the estate's tax 6 returns? 7 A. I'm not sure who prepared the estate 8 tax return. 9 Q. Is there a reason that return still 10 hasn't been provided to us? 11 A. I'm not sure it was filed properly. 12 Q. You're not sure it was filed 13 properly. 14 Is it your understanding that as the 15 executor, it's your obligation to ensure that 16 it's filed properly? 17 A. Well, it was paid. We made a 18 substantial payment to protect any kind of late 19 filing or any other penalties. 20 Q. What do you mean it was paid? 21 A. Made a check out to the Internal 22 Revenue Service and paid it in to them. 23 Q. How was it determined how much to 24 pay? 25 A. We estimated.

17 Page 55 2 Q. Did you consult any documents when 3 making that estimation? 4 A. We consulted, yes. 5 Q. What did you consult? 6 A. The estate's investment statements. 7 Q. Anything else? 8 A. I don't think so. 9 Q. Did you consult documents concerning 10 money that the estate had received from Valoc? 11 A. She didn't receive any monies from 12 Valoc. The estate didn't receive any monies 13 from Valoc. 14 Q. The estate never received monies from 15 Valoc. 16 A. That's correct. 17 MR. KRAMER: And also that this has 18 been asked and answered and I'm going to 19 get stricter on this now. This is really 20 repeating the old deposition, including the 21 part about who prepared the tax returns and 22 why a tax return wasn't prepared is already 23 asked and answered. 24 MR. GOLDSMITH: I'm just trying to 25 understand why we still don't have the

18 Page 56 2 estate tax return which has been requested 3 and re-requested. 4 BY MR. GOLDSMITH: 5 Q. Is there a draft of the estate's tax 6 return? 7 A. I don't know. 8 Q. Who would know? 9 A. I don't know who would know. 10 Q. Don't you think the executor of the 11 estate should know if there's a draft of the 12 estate tax return? 13 A. I don't know what accountants 14 prepared. 15 Q. Do you have an understanding as to 16 there being a deadline within which the estate 17 must actually file the tax return? 18 A. Yes. 19 Q. And what is your understanding of 20 that? 21 A. What returns are you referring to? 22 Q. The returns for the estate. 23 A. What returns? 24 MR. KRAMER: Be specific. 25 A. Federal, state, city?

19 Page 82 2 estate aware of that? 3 A. They are aware that there's a legal 4 matter. They assume, I guess they assume 5 there's a lawyer who's representing us. 6 Q. And you've made them aware of that? 7 A. Yes. 8 Q. To the extent that Valoc is 9 successful in the tax certiorari proceeding, is it 10 Valoc's intention to pay Mr. Kramer using those 11 funds? 12 A. I don't know. 13 Q. Does anyone know? 14 A. Not at this time. 15 MR. SHERMAN: Please mark the record. 16 BY MR. GOLDSMITH: 17 Q. I believe you alluded to this 18 previously, but did Valoc have a corporate 19 credit card? 20 A. It did. 21 Q. And what kind of credit card was 22 that; MasterCard, Visa? 23 A. I don't know. I don't recall. 24 Q. Did it have more than one credit card 25 account?

20 Page 83 2 A. No. 3 Q. And was it Ms. Miller's card? 4 A. Yes. 5 Q. Did you have your own? 6 A. I had one too. 7 Q. Who opened the account that had your 8 name on it? 9 A. The account had been opened before, 10 just added it in. 11 Q. And did Ms. Miller authorize adding 12 your name? 13 A. She had to. 14 Q. And how would that work in terms of, 15 you know, would Ms. Miller -- when you used the 16 card, would Ms. Miller authorize you to use it 17 before you used it? 18 A. No. 19 Q. Would she authorize the payments 20 being made after they were charged? 21 A. She would approve payment. 22 Q. After they were charged. 23 A. Yes. 24 Q. When was the last time you used the 25 Valoc corporate account card?

21 Page 84 2 A. In 2012, before it went out of 3 business. 4 Q. So you never used it after it went 5 out of business? 6 A. The card was cancelled when 7 Mrs. Miller died. 8 Q. And that was in the summer of 2012, 9 right? 10 A. Yes. 11 (Plaintiff's Exhibit 14, American 12 Express statements, Bates stamped Valoc 13 PJ1088 through 1226, marked for 14 identification, as of this date.) 15 BY MR. GOLDSMITH: 16 Q. This is a document that we've labeled 17 as Exhibit 14. It's stamped Valoc PJ through Are these account statements for 20 Valoc from American Express? 21 A. Yes. 22 Q. This is the card that was in your 23 name? 24 A. Yes. 25 Q. Would you turn to the third page,

22 Page 85 2 which is 1090? 3 (Witness complies.) 4 Q. So listing in the middle of the page 5 there it says, "6/24/14," it says, "Pietro's"? 6 A. Yes. 7 Q. And then it says $173.98? 8 A. Yes. 9 Q. Do you want to revise your testimony 10 that you never used the card after 2012? 11 A. Yes, I guess so. I forgot. 12 Q. So what is Pietro's? Is that a 13 restaurant? 14 A. Yes. 15 Q. Did you attend that meal? 16 A. Yes. 17 Q. Who else attended that meal? 18 A. I don't recall. 19 Q. What was the purpose of that meal? 20 A. I don't recall now. 21 Q. Did it relate in any way to Valoc? 22 A. It might have. I don't know. 23 Q. Valoc stopped doing business in and Ms. Miller was dead at that time, so what 25 was Valoc possibly doing at Pietro's in June of

23 Page ? 3 A. Well, Pietro's is across the street 4 from where the office, where Valoc's office was. 5 We might have met with all the tenants. 6 Q. With all tenants? 7 A. Yes. Screen Gems, I still have a 8 relation with Screen Gems. 9 Q. So for what purpose was Valoc meeting 10 with old tenants? 11 A. We might have been discussing real 12 estate. I don't know. 13 Q. But that doesn't relate to 14 prospective business that Valoc is going to be 15 doing. 16 A. Well, at that time they were out of 17 business. 18 Q. And is it your testimony that this 19 meal is -- was for a business purpose of Valoc? 20 A. No, it's not. I said it may have 21 been. I don't know. 22 Q. Does Valoc have any contemporaneous 23 records to substantiate that this meal was held 24 for a business purpose? 25 A. No. Not that I know of.

24 Page 87 2 Q. Is the monetary value of this meal 3 reflected in your personal tax returns? 4 A. Probably not. 5 Q. Was it your practice to charge, to 6 use the valid charge card for meals that had no 7 relation to Valoc? 8 A. No. 9 Q. Let's look at page There's 10 three entries there; May 16, May 28 and 11 June 6th, all in 2014, all for Pietro's and in 12 the amounts of $200.75, $ and $ Did you attend those meals? 14 A. I think so. 15 Q. Do you know who else attended those 16 meals? 17 A. I can't recall. 18 Q. And what was the purpose of those 19 meals? 20 A. I don't remember. 21 Q. Did they relate in any way to Valoc's 22 business? 23 A. Perhaps. 24 Q. And why do you say perhaps? 25 A. Because they may have, they may not

25 Page 88 2 have. I don't know. 3 Q. What business was Valoc doing in May 4 and June of 2014? 5 A. They were out of business, but they 6 potentially could go back into... 7 Q. What business could they go back 8 into? 9 A. Real estate. 10 Q. And how many assets -- did Valoc have 11 any assets at that time? 12 A. No, but they have affiliated com related com -- affiliated companies that are in 14 the real estate business. 15 Q. Affiliated in what sense? 16 A. Same ownership. 17 Q. Ms. Miller owned other real estate 18 businesses after she died? 19 A. After she died, she didn't own 20 anything. 21 Q. Her estate did? 22 A. Yes. 23 Q. And what were those? 24 A. I don't think -- there's a privilege. 25 I don't think...

26 Page 89 2 Q. There's no privilege. 3 MR. KRAMER: Repeat the question? 4 BY MR. GOLDSMITH: 5 Q. What was the name or the names of the 6 other real estate entities that the estate owned 7 or that Ms. Miller owned prior to her death? 8 A. I don't think that... Okay, Mildel 9 Realty. Mildel Property, I'm sorry. 10 Q. How do you spell that? 11 A. Mildel, M-i-l-d-e-l. 12 Q. Are there any others? 13 A. At the time she died, no. 14 Q. Where is that company incorporated? 15 Is it a corporation? 16 A. No. 17 Q. Is it an LLC? 18 A. Yes. 19 Q. Where was it formed, in what state? 20 A. New York. 21 Q. And what does it do? 22 A. It's real estate. 23 Q. Is it in the same business as Valoc? 24 Did it sublease A. It owns and leases property.

27 Page 90 2 Q. So your testimony is that -- so your 3 testimony is that these meals relate to -- 4 A. May have. 5 Q. May have. 6 Is there anything else they could 7 relate to? 8 A. I don't know. 9 Q. So I'll represent to you, and you're 10 welcome to go through the remainder of the 11 exhibit, but this exhibit details thousands of 12 dollars of charges being billed to Valoc for 13 meals at high-end restaurants in New York City 14 throughout December 2012 and all of 2013 and Is it your testimony that all of 17 those meals related to official business of 18 Valoc? 19 A. No. It may have. 20 Q. So if Valoc was potentially 21 meeting -- withdrawn. 22 Is it your testimony that Valoc might 23 have been meeting on a near weekly basis to 24 discuss prospective business? 25 A. No, I don't think it's on a weekly

28 Page 91 2 basis. 3 Q. We can go through it. 4 A. Yeah. 5 (Document review.) 6 A. There was one in one month. 7 Q. There's no question pending, sir. 8 Let's turn to page 1103, please. 9 (Witness complies). 10 Q. We have three charges here; two for 11 Pietro's, one for the Palm and April 19th, April 12 26th and May 10th, What were those -- what was the 14 purpose of those meals? 15 A. The same. 16 Q. Which was what again, to discuss 17 potential business? 18 A. Yes. 19 Q. And did Valoc ever develop any 20 business plans? 21 A. No. 22 Q. What was the potential business that 23 Valoc was thinking of engaging in? 24 A. Real estate. 25 Q. And you were going to engineer that

29 Page 92 2 business on behalf of the estate? 3 A. No. Perhaps. 4 Q. Is it common in your experience for 5 an estate to engage in business when the sole 6 shareholder is dead? 7 A. The estate's not, it's the 8 corporation. 9 Q. In your experience, is it common for 10 a corporation to engage in business after the 11 sole shareholder has died? 12 A. Sometimes. 13 Q. Who was to succeed to Ms. Miller's 14 shares in Valoc? 15 A. The estate. 16 Q. And did the estate have a provision 17 whereby those shares would be distributed to a 18 specific beneficiary or was it in the residuary? 19 A. It's in the residuary. 20 Q. And did you discuss these potential 21 business plans with the residuary beneficiaries? 22 A. No. 23 Q. Were they at any of these meals? 24 A. May have been. 25 Q. Do you recall who was present at any

30 Page 93 2 of these meals? 3 A. Not now. 4 Q. And do you have any records to -- any 5 contemporaneous records to substantiate that 6 these meals were held for a business purpose? 7 A. I may have my diaries, but I don't 8 know. 9 MR. GOLDSMITH: I request those be 10 produced. 11 BY MR. GOLDSMITH: 12 Q. And is the monetary value of any of 13 these meals reflected in your personal income 14 returns? 15 A. I don't think so. 16 Q. Let's go back in time a little bit 17 and go to page 1144, please. 18 (Witness complies.) 19 Q. It lists three charges here for 20 November 16th, 2013, November 22nd, 2013 and 21 November 27th, 2013 at Barbes, Pietro's and 22 Sam's Place. 23 Is Barbes and Sam's Place, are those 24 restaurants? 25 A. I don't know about Barbes.

31 Page 94 2 Sam's Place is a restaurant. 3 Q. And the first entry for Barbes is 4 $79.77, second for Pietro's is $ and the 5 last one for Sam's Place is $ Do you know who attended -- did you 7 attend the meals at Pietro's and Sam's Place? 8 A. I believe so. 9 Q. Do you know who else attended those 10 meals? 11 A. Not now. 12 Q. Were those meals related to official 13 business of Valoc? 14 A. Official business? I don't know. 15 Q. Were those meals related to business 16 of Valoc? 17 A. Perhaps. 18 Q. With respect to these charges and the 19 ones we previously discussed, who authorized you 20 to charge these expenses to Valoc? 21 A. At this time I was the sole officer 22 of Valoc. 23 Q. Did you think you were fulfilling the 24 fiduciary duty you owed to Valoc by charging 25 these meals to their expense account?

32 Page 95 2 A. Fiduciary duty to whom? 3 Q. Well, you were an officer of Valoc. 4 A. Yes. 5 Q. So you owed a fiduciary duty to the 6 shareholders -- 7 A. Right. 8 Q. -- which was the estate. 9 A. Yes. 10 Q. Did you feel you were fulfilling that 11 fiduciary duty? 12 A. I didn't think about it. 13 Q. Is it fair to say you were just using 14 this credit card as a personal slush fund for 15 meals? 16 A. No. 17 Q. How would you describe it? 18 A. I wouldn't describe it. 19 Q. Let's go to page This has nine 20 entries. Excuse me. Going on to the next page 21 it has 11 entries, 1173 and The first entry is for Avis Rent a 23 Car on July 18th, 2013 for $1, The next is for Francisco's Centro 25 New York, which is listed as a restaurant.

33 Page 96 2 That's on the same date and for $ The next entry is July 19th, 2013 for 4 a Broadway Amoco and it says, "unleaded 5 regular," which I presume means gas, and it's in 6 the amount of $ The next entry on July 22nd, 2013 is 8 for the Palm restaurant and that's for $ The next entry is July 27th, That's for Osteria Salina in Bridgehampton. It 11 says it's a restaurant and that's for $ Next is the same date. It's for Hess 13 for $ The next is July 29, 2013 for 15 Pietro's, $ The next is August 5th, 2013, Peking 17 Duck House. It's $ The next is August 9, 2013, Bobby 19 Van's in Bridgehampton for $ The next is August 11th and it says, 21 "Getty Alliance, gas and conv" for $ And the last entry is August 13th, for Solera Restaurant, $ With respect to the entries I just 25 recited for restaurants, did you attend those

34 Page 97 2 meals? 3 A. I believe so. 4 Q. And what was the purpose of those 5 meals? 6 A. I can't recall. 7 Q. What was Valoc doing in Bridgehampton 8 in August of 2013? 9 A. Valoc? 10 Q. What were you doing in -- what were 11 you doing eating dinner using Valoc's credit 12 card at Bobby Van's in Bridgehampton in August 13 of 2013? 14 A. What was I doing? 15 Q. Yeah. 16 A. Whatever I was doing. I was in 17 Bridgehampton. I had dinner there. 18 Q. Did that relate to Valoc's business? 19 A. Perhaps. 20 Q. Do you know who attended that meal 21 besides yourself? 22 A. No. Not now. 23 Q. Sitting here today, is there anybody 24 that you can think of who either resides in 25 Bridgehampton or visits Bridgehampton or would

35 Page 98 2 be in Bridgehampton at that time with whom you 3 would be meeting to discuss business relating to 4 Valoc? 5 A. Oh, many people who live in New York 6 real estate go out to Bridgehampton on weekends. 7 Q. So it's your testimony that in August 8 of 2013 after Ms. Miller died, after Valoc 9 stopped doing business, Valoc was meeting with 10 people in Bridge Hampton to discuss future 11 business of Valoc. 12 A. No. 13 Q. So what was it doing? 14 A. I said perhaps we were discussing it 15 with someone. I can't recall. 16 Q. So, Mr. Berkowitz, it's your 17 testimony that you can't recall with whom you 18 had any of these meals that we've discussed. 19 A. Not at this time. 20 Q. You have a pretty good memory 21 relating to the other things we discussed, but 22 with these meals, you just -- you don't know. 23 MR. KRAMER: Objection. Asked and 24 answered. 25 BY MR. GOLDSMITH:

36 Page 99 2 Q. Is that right, you just don't 3 remember? 4 MR. KRAMER: Objection. Asked and 5 answered. 6 Don't answer. 7 BY MR. GOLDSMITH: 8 Q. There's a listing here for Avis Rent 9 A Car. I'll represent to you that it's not the 10 only time Avis Rent A Car appears in these 11 statements. 12 What were you doing using Valoc's 13 credit card to rent a car? 14 A. That was my understanding with 15 Mrs. Miller that I could rent a car for Valoc 16 when I was representing Valoc. 17 Q. So what were you doing on behalf of 18 Valoc on July 18, 2013 when you rented a car 19 from Avis? 20 A. It was part of my agreement with 21 Mrs. Miller. 22 Q. My question, sir, is what were you 23 doing on behalf of Valoc on July 18, 2013 when 24 you rented this car? 25 A. I didn't say I was doing anything.

37 Page It was part of my agreement with her that they 3 would provide a, rent a car for me during 4 certain periods. 5 Q. Just for any purpose at all? 6 A. Yes. 7 Q. So is it your testimony that 8 subsequent to Valoc going out of business, you 9 were still allowed to use its credit card to 10 rent cars? 11 A. Yes. 12 Q. Did you have any other type of 13 agreement with Ms. Miller relating to your use 14 of Valoc's credit card? 15 A. No. 16 Q. You didn't have any agreement with 17 her relating to your use of the card to pay for 18 meals? 19 A. Yes, I did. She said I could use it 20 if I needed to. 21 Q. And did you have an agreement that 22 you could use it even after Valoc stopped doing 23 business? 24 A. I never discussed that. 25 Q. So you had a specific conversation

38 Page with Ms. Miller that you could use the credit 3 card to rent cars even after Valoc stopped doing 4 business; is that -- 5 A. It was never discussed about after 6 they were out of business. 7 Q. Okay. So I just want to make sure I 8 understand. 9 What was agreed between you and 10 Ms. Miller with respect to cars? 11 A. That I would be entitled to rent a 12 car and Valoc would pay for it. 13 Q. But you never discussed whether or 14 not you could do that even after Valoc stopped 15 doing business. 16 A. That's correct. 17 Q. Is there any documentation which 18 reflects that agreement? 19 A. Not specifically a car. 20 Q. Was it an oral understanding? 21 A. Yes. 22 Q. Was anyone present for those 23 discussions besides you and Ms. Miller? 24 A. I don't recall. 25 Q. Was anyone aware of that arrangement

39 Page besides you and Ms. Miller? 3 A. I don't recall, but this wasn't the 4 -- the bookkeeper would have paid the bills 5 related to this and those were included in the 6 bills and were approved by her. 7 Q. When you say "were approved by her," 8 you mean Ms. Miller? 9 A. Yes. 10 Q. But Ms. Miller couldn't approve bills 11 once she was no longer with us. 12 A. Prior to her death I may have rented 13 the car and she may have approved those bills. 14 Q. And you're married, sir, correct? 15 A. Yes. 16 Q. Did your wife attend any of these 17 meals? 18 A. Perhaps. 19 Q. What is your wife's name? 20 A. Alice. 21 Q. Alice Berkowitz? 22 A. Yes. 23 Q. She lives with you? 24 A. Yes. 25 Q. Did Mrs. Berkowitz travel with you to

40 Page Bridgehampton? 3 A. Yes. 4 Q. In July of 2013? 5 A. Well, not all the time. 6 Q. Was she with you in July of 2013 when 7 you ate at Bobby Van's? 8 A. I don't know. 9 Q. Would you have used Valoc's credit 10 card to pay for meals for your wife? 11 A. When she was alone? 12 Q. Sure, yes, when she was alone. 13 A. No. 14 Q. How about when she was with you? 15 A. Perhaps. Oh, when she was with me, 16 I probably charged it. If I charged it, then 17 she was there. 18 Q. Would you ever discuss business of 19 Valoc with your wife? 20 A. Sure. 21 Q. Does your wife have any background in 22 real estate? 23 A. Yes. 24 Q. What background does she have? 25 A. We own several real estate

41 Page properties. 3 Q. And is she presently employed? 4 A. No. She operates these real estate 5 properties for us. 6 MR. SHERMAN: I'm sorry. Can you 7 read that back? 8 You said, "And is she presently 9 employed?" 10 "No. She oper -- " 11 (Record was read back as follows: 12 "QUESTION: And is she presently 13 employed?") 14 "ANSWER: No. She operates these 15 real estate properties for us.") 16 BY MR. GOLDSMITH: 17 Q. Which real estate properties are 18 those? 19 A. We own several real estate 20 properties. 21 Q. Did she have any involvement with 22 Mildel? 23 A. No. 24 Q. So for what purpose would you discuss 25 Valoc with your wife?

42 Page A. Discussing real estate, general real 3 estate. 4 Q. Was she going to invest in Valoc? 5 A. No. 6 Q. Was she going to do anything on 7 behalf of Valoc? 8 A. Was she going to do? No, but she 9 understands real estate. 10 Q. So it was just general conversation, 11 you know, any advice she could offer? 12 A. It was discussing real estate trends 13 in the city. 14 Q. And you needed to go to the Palm and 15 Bobby Van's to do that? 16 A. I didn't say that. 17 Q. You couldn't discuss these things 18 with your wife at home? 19 A. I didn't say we discussed it then. 20 There may have been other people there also. 21 Q. I'll represent to you that these 22 statements, this Exhibit 14, it only spans 23 December 2012 and then 2013 and I request that you reach out to 25 American Express on behalf of Valoc to request

43 Page the prior statements for years 2007 through all 3 of And I would ask if you've ever done 5 that previously, if you've ever reached out to 6 American Express to ask that they provide 7 statements that predate December 2012 with 8 respect to this Valoc corporate account? 9 A. Well, they provide us statements 10 every month. 11 Q. In connection with this litigation, 12 have you ever asked them to provide statements 13 so that you can provide them to us? 14 A. They provide us every month with a 15 statement. 16 Q. That's not my question. 17 After this litigation was commenced 18 in 2013, did you ever reach out to American 19 Express and ask them to provide you statements 20 that were dated from before 2013, before 21 December 2012 for Valoc for this corporate 22 account that you could then provide to us in 23 discovery? 24 A. No. 25 Q. And I would request that you do so.