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652122/2019
NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/22/2021

1 SUPREME COURT OF THE STATE OF NEW YORK

2 COUNTY OF NEW YORK: TRIAL TERM PART 3

3 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

4 BRUCE T. BERNSTEIN,

5 Plaintiff,

6 - against -

7 SHERYL AUFRICHTIG,

8 Defendant.

9 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
Index No. 652122/2018
10
November 23, 2020
11 Microsoft Teams Proceeding

12 B E F O R E: THE HONORABLE JOEL M. COHEN, Justice

13 A P P E A R A N C E S:

14 CANELAW LLP
Attorneys at Law
15 200 Park Avenue
New York, New York 10166
16 BY: PETER CANE, ESQ.

17 DAVID BOLTON, PC
Attorney at Law
18 666 Old Country Road
Garden City, New York 11530
19 BY: DAVID BOLTON, ESQ.

20

21

22

23

24
Terry-Ann Volberg, CSR, CRR
25 Official Court Reporter

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1 THE COURT: Good afternoon, counsel.

2 Let's start with appearances beginning with the

3 plaintiff.

4 MR. CANE: Good afternoon, your Honor.

5 Peter Cane for the plaintiff, Bruce Bernstein.

6 MR. BOLTON: Good afternoon, your Honor.

7 David Bolton, 666 Old Country Road, Garden City,

8 New York 11530, for the defendant.

9 THE COURT: Okay. Well, this is a motion for

10 sanctions. I have got some rough facts here, I think, and

11 so I guess I would ask Mr. Cane to start since the other

12 side had the last brief. It seems to me they put together a

13 fairly impressive list of statements of fact where your

14 client didn't use the word "incur," even if that's an

15 ambiguous word, it's just saying over and over again that he

16 paid legal fees.

17 That's in the complaint, that's in his affidavit

18 in opposition to the motion to dismiss, it's in responses to

19 interrogatories, and even as late as your letter on

20 September 1, actually before that, there were discovery

21 disputes where the issue was whether to produce documents

22 showing the bills that were paid, and rather than saying,

23 well, no, there are none, it was, well, we need a

24 confidentiality agreement or we need this or we need that,

25 which certainly presupposes that there were bills. Finally

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1 in September your letter says, when this issue was front and

2 center, that he was required in the first instance to pay

3 the fees and then seek reimbursement, and then offers to

4 provide the wire transfers, and expresses some, you know,

5 frustration that the plaintiff -- that defendant wouldn't at

6 least wait until he saw the wire transfers, followed finally

7 by Mr. Bernstein's affidavit, which, you know, the umbrage

8 in that affidavit was a little misplaced, I think, makes

9 clear that he never paid anything.

10 So I need you to help me through this because I

11 cannot square these statements, and they do not seem to me

12 to be ambiguous.

13 MR. CANE: Well, Judge, we have the wire transfer,

14 and when I got the wire transfer that's when it became clear

15 that Mr. Bernstein misunderstood what was going on. As he

16 says in his affidavit, I mean, the fact is that in the

17 federal case there were hundreds of thousands of dollars

18 spent on legal fees that wouldn't have otherwise been spent

19 because of the documents that Ms. Aufrichtig injected into

20 the case.

21 THE COURT: None of which he paid.

22 MR. CANE: None of which he paid.

23 His belief, and until he sent me the wire transfer

24 and then I was able to figure out what he was doing, his

25 belief was that he could recover the fees in this case and

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1 repay Express Spa, the company that was paying the bills,

2 and reimburse them because he is an individual defendant in

3 the case.

4 THE COURT: What are the wire transfers that you

5 are talking about?

6 MR. CANE: It was a wire transfer that was for a

7 different case that he was reimbursed in that he had -- in

8 that case he had fronted the fees, and he was reimbursed.

9 That's not what happened in the federal action issue here.

10 I do have the wire transfer. That was the document that

11 helped me to make him understand what the problem was.

12 Judge, if we take a step back, if you look at the

13 cases that the defendant cites here on the motion, those are

14 cases that deserve sanctions where you have knowing perjury

15 engaged in by a party. This wasn't perjury. He wasn't

16 making knowingly false statements. It was a

17 misunderstanding.

18 THE COURT: Well, you say that. That means, I

19 assume, that I believe the affidavit, which is the last

20 thing in this chain. And you make a valiant effort in the

21 brief to say that the word "incurred" may mean sort of an

22 ethereal obligation even if you don't pay it, but incurred

23 is not the word used over and over again. It's that he paid

24 legal fees. Mr. Bernstein is not a babe in the woods. I

25 think he knows what the word "paid" means, and I sort of

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1 find this idea of him being confused about what it means a

2 little hard to believe.

3 MR. CANE: Mr. Bernstein told me, and I believe

4 him. I don't think he is knowingly trying to perpetrate a

5 fraud on the Court here.

6 THE COURT: No, I don't suggest that. Let's say

7 it's perplexing because, again, it's not the perfect crime

8 because it's going to inevitably be clear what happened,

9 which makes the whole process a little odd in that, I mean,

10 I have no doubt what you believe because you were having

11 these discovery fights, and there were these documents that

12 were going to be looked for, and at some point the light

13 bulb went off that they don't exist because it didn't

14 happen, so I get the point. It's just that the party who

15 signed off on all of these things including the complaint,

16 and the affidavit, and the interrogatory responses clearly

17 should have known that what he was saying, which was seeking

18 compensation for "paying," not "incurring," legal fees. I

19 just -- you know, I can understand where you're coming from,

20 but I just don't know how he signed off on saying that he

21 paid the fees.

22 So, I mean, look, I guess, I will hear the rest of

23 the legal argument, but, you know, the affidavit does not

24 persuade me much, and I guess the question we will have to

25 get to is whether, after I reach a conclusion as to what to

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1 do here, whether you want to bring your client in to

2 testify, and I can evaluate it for myself, but it strains

3 credibility a bit because he is a sophisticated guy, and I

4 don't think these concepts are that esoteric.

5 Mr. Bolton.

6 MR. BOLTON: No, your Honor, I mean, I think you

7 have said everything that we believe to have occurred. The

8 only thing I would add is, you know, we have yet another

9 layer of prevarication, I believe, where Mr. Bernstein is

10 saying, well, the company paid it in the first instance, but

11 there's absolutely no proof that that occurred.

12 It's our understanding that these legal fees were

13 covered by D&O insurance, and there's no evidence that Mr.

14 Bernstein paid any money out-of-pocket. So the thought that

15 he would sue his ex-wife claiming repeatedly that he paid

16 monies so that he could collect those monies, and then pay

17 them over to a public company, Express Spa, that has

18 revenues of $132 million a year where the fees were paid by

19 D&O insurance --

20 THE COURT: Yeah, but, look, if you follow that,

21 what would happen, right, I mean everybody is subrogated a

22 level down, if somebody increased the legal fees

23 substantially, and let's say Mr. Bernstein had standing to

24 do that, it would ultimately -- the insurance company would

25 have entitlement to have that compensation, so it wouldn't

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1 stay with him no matter what happened.

2 And, you know, I've been struggling with this sort

3 of hypothetically. Let's assume a case where somebody

4 breached an agreement, and it resulted in 10 million of

5 extra legal fees in this case, you know, the case wouldn't

6 exist but for this breach of agreement. Would there be no

7 remedy at all because the insurance company has no contract

8 with her, and under your theory Mr. Bernstein has no

9 standing, so can somebody just breach a contract, drive up

10 legal fees by millions and millions, and then there's no

11 remedy for that?

12 MR. BOLTON: Well, it's an interesting

13 hypothetical. I think that if in the hypothetical there is

14 an insurance company that's covering, there certainly could

15 be a right of subrogation, but who would the insurance

16 company be subrogated to? To the company. So it's

17 theoretically possible that, yes, in that narrow where you

18 have an insurance company and there's coverage, that might

19 happen in that case, but that's a very, I think, esoteric

20 potential case.

21 THE COURT: It's different in degree, but not

22 kind, right, because, I mean clearly the company or the

23 insurance company couldn't sue your client for breaching the

24 confidentiality agreement because they are not parties to

25 it, and you're saying Mr. Bernstein can't recover the fees

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1 because he didn't pay them, and so you end up with a tort or

2 breach of contract with no remedy.

3 What about Mr. Cane's point? Look, I think, just

4 to get the spoiler alert out of the way, I think the

5 argument for the costs of responding to and dealing with

6 various discovery requests on this is pretty

7 straightforward, it seems to me. Even assuming it's an

8 honest mistake or confusion or whatever it is, your client

9 shouldn't have to pay to unravel it. The tougher question

10 to me is the sanctions under 22 NYCRR 130-1 -- well, one of

11 those -- which requires a certain amount of quasi

12 intentional conduct.

13 I think it's fair to say that the statements in

14 the complaint and these various other papers are inaccurate.

15 Now that we know, everybody knows the facts, they are

16 inaccurate. The question is whether they are so sort of

17 venal that they should be given a fairly significant penalty

18 in a situation where no one could possibly have thought that

19 they would get away with this if it was their intent forever

20 because if they know how the legal system works, this is not

21 something that will just go away. I mean, in other words,

22 it's almost so blatant that it really can't be.

23 MR. BOLTON: May I respond, your Honor?

24 So many, many, many years ago when I was in law

25 school I clerk for a federal judge, three or four federal

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1 judges during law school, and I had occasion to watch a lot

2 of sentencings, and every single criminal defendant had the

3 same thing in common: They were very, very sorry, and they

4 really weren't sorry that they did it, they were sorry that

5 they got caught.

6 So who is going to, who is going to break the law

7 knowing -- because people get caught all day long, and maybe

8 the odds are in people's favor, so the fact is, I don't

9 think Mr. Bernstein ever thought that anybody was going to

10 push this so hard. I don't know that a lot of lawyers other

11 than myself and my client would have pushed this as hard as

12 it was pushed. And the fact that it doesn't make any sense

13 to do what he did is not a defense against the fact that he

14 did it, and he did it over, and over, and over. And it's

15 not just over and over. How much did you pay? I paid

16 $175,000. The amount I'm paying continues. I have been

17 hurt because I am paying.

18 So, you know, yes --

19 THE COURT: Well, it's consistent, it's just

20 consistently wrong. I mean, you either buy this or you

21 don't, right? Either, you know, he said it over and over

22 again because his view was I did pay it in the sense that I

23 was the defendant, it was paid on my behalf, and I thought,

24 again, in his words, that meant I could recover it, and then

25 pay it to whoever I needed to pay it to.

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1 Let's just assume right now that that does not

2 work, and that's why they have withdrawn the claim, but

3 obviously when you seek an amount in a lawsuit, you know you

4 will have to provide the evidence, and, you know, it's

5 almost -- you kind of use the person's intelligence in the

6 other direction because obviously if you're going to sue for

7 it, you will have to ultimately prove it, so one would argue

8 that he must have believed that this was okay. It's a

9 little hard to square with the words, but in terms of the

10 penal aspect of the sanctions, you know, the question is

11 whether it's an innocent mistake, and that's hard to gauge

12 on a paper record, I grant you.

13 MR. BOLTON: Well, I think the repetition, and the

14 use of the words, and the specific dollar amount of

15 $175,000, now where does that come from? So, I mean, that's

16 another point. We don't know where it comes from because we

17 have not seen --

18 THE COURT: I have a separate question about

19 whether is that the delta of the increased expenses owing

20 solely to the alleged breach or is that all of the expenses

21 in the case as a whole which was going on before the breach

22 anyway? We don't have to deal with that because those fees

23 are no longer in the case, but, I'm sorry, go ahead.

24 MR. BOLTON: So I circle all the way back to the

25 whole concept of perjury in civil litigation, and I

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1 understand where the Court says you might not be able to

2 make the determination as to the intent to the extent that's

3 required without seeing Mr. Bernstein. I think you can

4 given the nature of the defense, and given the repetition,

5 and given the words he used, and given his background, BBA,

6 chairman of a successful public company, et cetera.

7 The statute says "Frivolous conduct is defined as"

8 -- sorry -- it says "For purposes of this part conduct is

9 frivolous if it asserts material factual statements that are

10 false." That was done over and over again. Now, I don't

11 know that that interjects an intent for a perjury

12 prosecution which is in this Court's purview, they have to

13 show intent, that he knowingly -- knowing it was false, but

14 here there is no doubt that material, false, factual

15 statements were asserted.

16 What really, really upset me, and we had this

17 discussion with Mr. Naram a little bit, is just the fact of

18 perjury in civil litigation to me, in my experience,

19 hopefully on the good side, is that it's rampant, that

20 people don't feel that they need to be careful about what

21 they say, they don't need to hue really close to the line of

22 being careful, and people make statements because they are

23 expedient. And I have no doubt, this is just me, this is my

24 opinion, that Mr. Bernstein did exactly what he wanted to

25 do. He knew he didn't incur penny one because there was D&O

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1 insurance, and he never wrote a check, and he wanted to

2 assert these claims because they are inflammatory, and they

3 are -- they are large dollar amounts. For whatever reason

4 he did it, he did it, and he used the word "paid" over and

5 over and over again.

6 And I think that the Court should determine on

7 this or at a hearing, and if the Court does determine that

8 Mr. Bernstein did intend to mislead, okay, that he asserted

9 material factual statements that were false, that's enough

10 for sanctions, and he knew it, then I think the Court really

11 needs to send a message to Mr. Bernstein, and to litigants,

12 and to the bar that you can't get away with this especially

13 in my courtroom.

14 You know, I circle back, and I resisted going to

15 the next level, so I will say this: Mr. Bernstein and

16 Mr. Cane, I think, put in an affidavit that said, you know,

17 it was a misunderstanding -- I'm sorry -- Mr. Bernstein

18 says, "It was a misunderstanding. When I informed my

19 attorney that I had incurred the legal fees in question I

20 did not understand this meant that I paid them."

21 Well, what did counsel do? Okay. A client comes

22 to you and says, I incurred these legal fees, and the

23 affidavit says paid, and the complaint says paid, and the

24 answer to interrogatories says paid. Where was counsel

25 saying, okay, before I make this allegation, before I put it

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1 in an affidavit, before I put it a document response, before

2 I put it into two separate answers to interrogatories, show

3 me what you have got, let's drill down on this.

4 So, one, if I had to I would say that, I don't

5 know if it occurred or not, and it does not matter to me,

6 but where was the due diligence? Where is the investigation

7 which Part 130 requires?

8 So I think Mr. Bernstein is in trouble, so to

9 speak, on both fronts, whether he knew it or whether he

10 didn't provide any evidence or anything to support this

11 repeated inflammatory and large damage claim.

12 THE COURT: Okay.

13 Mr. Cane.

14 MR. CANE: Did you have a question, Judge?

15 THE COURT: No, just back to you.

16 MR. CANE: First of all, this is by far the lesser

17 of our damage claims here, right. The meat of our damage

18 claim here is the damage that was done to Mr. Bernstein's

19 ability to join corporate boards, to get investments. We

20 have at least two witness who will testify that they had to

21 withdraw negotiations with Mr. Bernstein about employment

22 and other opportunities because of what happens when you

23 Google his name now as a result of the article that was

24 published which in turn was the result of Ms. Aufrichtig's

25 injection of those confidential documents into the case. So

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1 Mr. Bernstein's incentive here, I think, is being blown up a

2 little bit.

3 But throughout the memorandum in support of the

4 motion counsel refers to the fact that he lied and committed

5 perjury, and that's the basis for his application for the

6 relief under the statute. It wasn't an intentional

7 misrepresentation of the facts. Yes, Mr. Bernstein is an

8 experienced and successful businessman. He is not a lawyer.

9 When I asked him about this, his response, frankly, was the

10 company -- well, the company lost the money, and that's my

11 money. So let's not attribute to him a level of

12 sophistication that he may not have.

13 I asked him point black, did you pay this money,

14 and he said, yes, his response was, as a result of a

15 misunderstanding. As soon as I saw the wire transfer, and

16 drilled down into it, and understood that he did not pay it

17 we withdrew the claim.

18 If the Court believes it's appropriate to sanction

19 my client in an amount equal to the legal fees that it took

20 to get to that answer, understood, but to say Mr.

21 Bernstein's a perjurer, and to say that he lied in his

22 pleadings, that's just not what happened.

23 THE COURT: Here's where I am on this. I have to

24 say, I understand the point. I didn't find Mr. Bernstein's

25 affidavit terribly compelling not least which because he

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1 minimizes the seriousness of this calling it a molehill

2 where I will tell you when I read the complaint I assumed

3 that attorney's fees would be a significant part of the

4 concrete response or concrete damages, and the case has been

5 pending for a while, I don't know if it's probably more than

6 a year, and we are only now getting to the point where sort

7 of the one concrete measure of damages is just gone, and it

8 should have been gone from the beginning. I just don't

9 think I can let that go as a molehill because it's a serious

10 matter.

11 I will say that I don't find the written record

12 compelling, and so based on the written record what I will

13 do is grant the request for costs and impose a $5,000

14 separate sanction for maintaining a material misstatement of

15 fact for as long as it was maintained which lead to

16 complexities and problems between the Court and the other

17 side for far too long. I don't think the language was

18 convoluted, and I think somebody -- well, let me say that I

19 was not persuaded by the affidavit that this was just sort

20 of a mistake of language.

21 Having said that, if Mr. Bernstein thinks that

22 maybe the written record is not sufficiently compelling and

23 he wants to testify, we can do that. I'll just tell you

24 that it will be a clean slate, and I'll make the

25 determination as to sanctions whether it's zero or a much

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1 higher number than 5,000. That's not meant to be a threat.

2 I'm just telling you based on the record that I have in

3 front of me I'm not persuaded. I suspect it's not hidden

4 that I'm not pleased with the minimization of having a

5 statement being made over and over again in sworn statements

6 that is plainly false.

7 So that's my ruling.

8 Mr. Bolton, I don't know that you have submitted

9 supporting documentation for your fees and costs in

10 connection with this issue. I think you've ballparked them

11 at about $1,800. So before I can issue that as an award, I

12 would need you to submit a bill of costs or some other form

13 of evidence unless you and Mr. Cane can reach an agreement

14 and just stipulate to the amount.

15 So I'll issue that order, it will reference back

16 to the statements I've made here, and I hope going forward

17 we can have a much cleaner record.

18 Just for the record, I've had Mr. Cane in lots of

19 cases, and I don't for a second believe that you're making

20 statements you knew to be untrue.

21 MR. CANE: Thank you for that, Judge.

22 THE COURT: There may be confusion and the like,

23 but I just think, let's say, this is a very bad look for

24 your client, and hopefully it's an innocent mistake, and it

25 won't happen again, but I think this is an appropriate

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1 result.

2 Thank you everyone.

3 MR. CANE: Thank you, Judge.

4 MR. BOLTON: Thank you, Judge.

5 THE COURT: Have a good holiday.

6 MR. BOLTON: We will order the transcript.

7 MR. CANE: Yes, we will order the transcript.

8 ***

9 C E R T I F I C A T E

10 I, Terry-Ann Volberg, C.S.R., an official court reporter of

11 the State of New York, do hereby certify that the foregoing

12 is a true and accurate transcript of my stenographic notes.

13

14 _______________________
Terry-Ann Volberg, CSR, CRR
15 Official Court Reporter

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23 [1] 1/10 Attorneys [1] 1/14 careful [2] 11/20 11/22
attribute [1] 14/11 case [15] 3/17 3/20 3/25 4/3 4/7 4/8 7/3
5 AUFRICHTIG [2] 1/7 3/19 7/5 7/5 7/19 7/20 10/21 10/23 13/25
5,000 [1] 16/1 Aufrichtig's [1] 13/24 15/4
Avenue [1] 1/15 cases [3] 4/13 4/14 16/19
6 award [1] 16/11 caught [2] 9/5 9/7
652122/2018 [1] 1/9 away [3] 8/19 8/21 12/12 center [1] 3/2
666 [2] 1/18 2/7 certain [1] 8/11
B certainly [2] 2/25 7/14
A babe [1] 4/24 certify [1] 17/11
ability [1] 13/19 back [5] 4/12 10/24 12/14 13/15 16/15 cetera [1] 11/6
able [2] 3/24 11/1 background [1] 11/5 chain [1] 4/20
about [8] 4/5 5/1 8/3 10/18 11/20 13/21 bad [1] 16/23 chairman [1] 11/6
14/9 16/11 ballparked [1] 16/10 check [1] 12/1
absolutely [1] 6/11 bar [1] 12/12 circle [2] 10/24 12/14
accurate [1] 17/12 based [2] 15/12 16/2 cites [1] 4/13
action [1] 4/9 basis [1] 14/5 City [2] 1/18 2/7
actually [1] 2/20 BBA [1] 11/5 civil [2] 10/25 11/18
add [1] 6/8 be [15] 3/12 5/8 5/12 7/6 7/15 7/16 8/17 claim [4] 10/2 13/11 13/18 14/17
affidavit [12] 2/17 3/7 3/8 3/16 4/19 5/16 8/22 11/1 11/20 15/3 15/24 16/1 16/20 claiming [1] 6/15
5/23 12/16 12/23 13/1 14/25 15/19 16/22 claims [2] 12/2 13/17
after [1] 5/25 became [1] 3/14 clean [1] 15/24
afternoon [3] 2/1 2/4 2/6 because [25] cleaner [1] 16/17
again [9] 2/15 4/23 5/7 9/22 9/24 11/10 been [5] 3/18 7/2 9/16 15/4 15/8 clear [3] 3/9 3/14 5/8
12/5 16/5 16/25 before [7] 2/20 10/21 12/25 12/25 13/1 clearly [2] 5/16 7/22
against [2] 1/6 9/13 13/1 16/11 clerk [1] 8/25
ago [1] 8/24 beginning [2] 2/2 15/8 client [8] 2/14 6/1 7/23 8/8 9/11 12/21
agreement [5] 2/24 7/4 7/6 7/24 16/13 behalf [1] 9/23 14/19 16/24
ahead [1] 10/23 being [4] 5/1 11/22 14/1 16/5 close [1] 11/21
alert [1] 8/4 belief [2] 3/23 3/25 COHEN [1] 1/12
all [6] 5/15 7/7 9/7 10/20 10/24 13/16 believe [7] 4/19 5/2 5/3 5/10 6/7 6/9 collect [1] 6/16
allegation [1] 12/25 16/19 come [1] 10/15
alleged [1] 10/20 believed [1] 10/8 comes [2] 10/16 12/21
almost [2] 8/22 10/5 believes [1] 14/18 coming [1] 5/19
am [2] 9/17 14/23 BERNSTEIN [21] committed [1] 14/4
ambiguous [2] 2/15 3/12 Bernstein's [5] 3/7 13/18 14/1 14/21 common [1] 9/3
amount [6] 8/11 9/16 10/3 10/14 14/19 14/24 company [14] 4/1 6/10 6/17 6/24 7/7
16/14 between [1] 15/16 7/14 7/16 7/16 7/18 7/22 7/23 11/6
amounts [1] 12/3 bill [1] 16/12 14/10 14/10
Ann [3] 1/24 17/10 17/14 bills [3] 2/22 2/25 4/1 compelling [3] 14/25 15/12 15/22
another [2] 6/8 10/16 bit [3] 6/3 11/17 14/2 compensation [2] 5/18 6/25
answer [2] 12/24 14/20 black [1] 14/13 complaint [5] 2/17 5/15 8/14 12/23 15/2

18 of 22
FILED: CNEW YORK COUNTY CLERK INDEX NO. 652122/2019
does01/22/2021 12:27
[5] 5/23 10/1 10/15 12/7 13/5 PM
followed [1] 3/6
NYSCEF DOC. NO. 138 doesn't [1] 9/12 foregoing [1] 17/11 NYSCEF: 01/22/2021
RECEIVED
complexities [1] 15/16
doing [1] 3/24 forever [1] 8/19
concept [1] 10/25
dollar [2] 10/14 12/3 form [1] 16/12
concepts [1] 6/4
dollars [1] 3/17 forward [1] 16/16
conclusion [1] 5/25
don't [21] four [1] 8/25
concrete [3] 15/4 15/4 15/7
done [2] 11/10 13/18 frankly [1] 14/9
conduct [3] 8/12 11/7 11/8
doubt [3] 5/10 11/14 11/23 fraud [1] 5/5
confidential [1] 13/25
down [3] 6/22 13/3 14/16 frivolous [2] 11/7 11/9
confidentiality [2] 2/24 7/24
drill [1] 13/3 front [2] 3/1 16/3
confused [1] 5/1
drilled [1] 14/16 fronted [1] 4/8
confusion [2] 8/8 16/22
drive [1] 7/9 fronts [1] 13/9
connection [1] 16/10
due [1] 13/6 frustration [1] 3/5
consistent [1] 9/19
during [1] 9/1
consistently [1] 9/20 G
continues [1] 9/16 E Garden [2] 1/18 2/7
contract [3] 7/7 7/9 8/2
effort [1] 4/20 gauge [1] 10/11
convoluted [1] 15/18
either [2] 9/20 9/21 get [8] 5/14 5/25 8/4 8/19 9/7 12/12
corporate [1] 13/19
employment [1] 13/21 13/19 14/20
costs [4] 8/5 15/13 16/9 16/12
end [1] 8/1 getting [1] 15/6
could [5] 3/25 6/16 7/14 8/18 9/24
engaged [1] 4/15 given [5] 8/17 11/4 11/4 11/5 11/5
couldn't [1] 7/23
enough [1] 12/9 go [3] 8/21 10/23 15/9
counsel [4] 2/1 12/21 12/24 14/4
entitlement [1] 6/25 going [10] 3/15 5/8 5/12 9/6 9/6 9/9 10/6
Country [2] 1/18 2/7
equal [1] 14/19 10/21 12/14 16/16
COUNTY [1] 1/2
esoteric [2] 6/4 7/19 gone [2] 15/7 15/8
court [11] 1/1 1/25 5/5 11/1 12/6 12/7
especially [1] 12/12 good [5] 2/1 2/4 2/6 11/19 17/5
12/10 14/18 15/16 17/10 17/15
ESQ [2] 1/16 1/19 Google [1] 13/23
Court's [1] 11/12
et [1] 11/6 got [4] 2/10 3/14 9/5 13/3
courtroom [1] 12/13
ethereal [1] 4/22 grant [2] 10/12 15/13
coverage [1] 7/18
evaluate [1] 6/2 guess [3] 2/11 5/22 5/24
covered [1] 6/13
even [4] 2/14 2/19 4/22 8/7 guy [1] 6/3
covering [1] 7/14
ever [1] 9/9
credibility [1] 6/3
every [1] 9/2 H
crime [1] 5/7 had [11] 2/12 4/7 4/8 6/23 9/1 9/2 11/16
everybody [2] 6/21 8/15
criminal [1] 9/2 12/19 13/4 13/20 16/18
everyone [1] 17/2
CRR [2] 1/24 17/14 happen [4] 5/14 6/21 7/19 16/25
everything [1] 6/7
CSR [2] 1/24 17/14 happened [4] 4/9 5/8 7/1 14/22
evidence [4] 6/13 10/4 13/10 16/13
D ex [1] 6/15 happens [1] 13/22
ex-wife [1] 6/15 hard [5] 5/2 9/10 9/11 10/9 10/11
damage [4] 13/11 13/17 13/17 13/18
exactly [1] 11/24 has [4] 6/17 7/7 7/8 15/4
damages [2] 15/4 15/7
exist [2] 5/13 7/6 have [37]
DAVID [3] 1/17 1/19 2/7
expedient [1] 11/23 having [3] 5/10 15/21 16/4
day [1] 9/7
expenses [2] 10/19 10/20 he [54]
deal [1] 10/22
experience [1] 11/18 hear [1] 5/22
dealing [1] 8/5
experienced [1] 14/8 hearing [1] 12/7
defendant [7] 1/8 2/8 3/5 4/2 4/13 9/2
Express [2] 4/1 6/17 help [1] 3/10
9/23
expresses [1] 3/4 helped [1] 4/11
defense [2] 9/13 11/4
extent [1] 11/2 her [1] 7/8
defined [1] 11/7
extra [1] 7/5 here [10] 2/10 4/9 4/13 5/5 6/1 11/14
degree [1] 7/21
13/17 13/18 14/1 16/16
delta [1] 10/19 F Here's [1] 14/23
deserve [1] 4/14
fact [8] 2/13 3/16 9/8 9/12 9/13 11/17 hereby [1] 17/11
determination [2] 11/2 15/25
14/4 15/15 hidden [1] 16/3
determine [2] 12/6 12/7
facts [3] 2/10 8/15 14/7 higher [1] 16/1
did [15] 9/4 9/13 9/14 9/14 9/15 9/22
factual [3] 11/9 11/14 12/9 him [7] 4/11 5/1 5/4 7/1 14/9 14/11
11/24 12/4 12/4 12/8 12/20 12/21 13/14
fair [1] 8/13 14/13
14/13 14/16
fairly [2] 2/13 8/17 his [13] 2/17 3/16 3/23 3/24 6/15 9/22
didn't [6] 2/14 5/13 8/1 11/25 13/10
false [6] 4/16 11/10 11/13 11/14 12/9 9/24 11/5 13/23 14/5 14/9 14/14 14/21
14/24
16/6 holiday [1] 17/5
different [2] 4/7 7/21
far [2] 13/16 15/17 honest [1] 8/8
diligence [1] 13/6
favor [1] 9/8 Honor [4] 2/4 2/6 6/6 8/23
direction [1] 10/6
federal [4] 3/17 4/9 8/25 8/25 HONORABLE [1] 1/12
discovery [3] 2/20 5/11 8/6
feel [1] 11/20 hope [1] 16/16
discussion [1] 11/17
fees [20] hopefully [2] 11/19 16/24
dismiss [1] 2/18
fights [1] 5/11 how [3] 5/20 8/20 9/15
disputes [1] 2/21
figure [1] 3/24 hue [1] 11/21
do [10] 3/11 4/10 6/1 6/24 9/13 11/25
finally [2] 2/25 3/6 hundreds [1] 3/17
12/21 15/13 15/23 17/11
find [3] 5/1 14/24 15/11 hurt [1] 9/17
document [2] 4/10 13/1
first [3] 3/2 6/10 13/16 hypothetical [2] 7/13 7/13
documentation [1] 16/9
follow [1] 6/20 hypothetically [1] 7/3
documents [4] 2/21 3/19 5/11 13/25

19 of 22
FILED: I NEW YORK COUNTY CLERK 01/22/2021 12:27 PM INDEX NO. 652122/2019
lawyer [1] 14/8 monies [2] 6/16 6/16
NYSCEF DOC. NO. 138 lawyers [1] 9/10 more [1]RECEIVED
15/5 NYSCEF: 01/22/2021
I'll [3] 15/23 15/24 16/15
layer [1] 6/9 motion [4] 2/9 2/18 4/13 14/4
I'm [6] 9/16 10/23 12/17 16/2 16/3 16/4
lead [1] 15/15 Mr [24]
I've [3] 7/2 16/16 16/18
least [3] 3/6 13/20 14/25 Mr. [9] 2/11 3/7 3/15 4/24 11/17 12/16
idea [1] 5/1
legal [13] 2/16 3/18 4/24 5/18 5/23 6/12 13/13 16/13 16/18
if [17] 2/14 4/12 4/12 4/22 6/20 6/22
6/22 7/5 7/10 8/20 12/19 12/22 14/19 Mr. Bernstein [2] 3/15 4/24
7/13 8/19 8/20 10/6 11/9 12/7 13/4 13/5
lesser [1] 13/16 Mr. Bernstein's [1] 3/7
14/18 15/5 15/21
let [2] 15/9 15/18 Mr. Cane [5] 2/11 12/16 13/13 16/13
impose [1] 15/13
let's [8] 2/2 5/6 6/23 7/3 10/1 13/3 14/11 16/18
impressive [1] 2/13
16/23 Mr. Naram [1] 11/17
in [57]
letter [2] 2/19 3/1 Ms [2] 3/19 13/24
inaccurate [2] 8/14 8/16
level [3] 6/22 12/15 14/11 much [4] 5/24 9/15 15/25 16/17
incentive [1] 14/1
lied [2] 14/4 14/21 must [1] 10/8
including [1] 5/15
light [1] 5/12 my [10] 9/11 9/23 11/18 11/23 12/13
increased [2] 6/22 10/19
like [1] 16/22 12/18 14/10 14/19 16/7 17/12
incur [2] 2/14 11/25
line [1] 11/21 myself [2] 6/2 9/11
incurred [4] 4/21 4/22 12/19 12/22
list [1] 2/13
incurring [1] 5/18 N
litigants [1] 12/11
Index [1] 1/9
litigation [2] 10/25 11/18 name [1] 13/23
individual [1] 4/2
little [6] 3/8 5/2 5/9 10/9 11/17 14/2 Naram [1] 11/17
inevitably [1] 5/8
LLP [1] 1/14 narrow [1] 7/17
inflammatory [2] 12/2 13/11
long [3] 9/7 15/15 15/17 nature [1] 11/4
informed [1] 12/18
longer [1] 10/23 need [7] 2/23 2/24 2/24 3/10 11/20
injected [1] 3/19
look [5] 4/12 5/22 6/20 8/3 16/23 11/21 16/12
injection [1] 13/25
looked [1] 5/12 needed [1] 9/25
innocent [2] 10/11 16/24
lost [1] 14/10 needs [1] 12/11
instance [2] 3/2 6/10
lot [2] 9/1 9/10 negotiations [1] 13/21
insurance [9] 6/13 6/19 6/24 7/7 7/14
lots [1] 16/18 never [2] 3/9 12/1
7/15 7/18 7/23 12/1
NEW [7] 1/1 1/2 1/15 1/15 1/18 2/8
intelligence [1] 10/5 M 17/11
intend [1] 12/8
made [2] 16/5 16/16 next [1] 12/15
intent [4] 8/19 11/2 11/11 11/13
maintained [1] 15/15 no [18]
intentional [2] 8/12 14/6
maintaining [1] 15/14 none [3] 2/23 3/21 3/22
interesting [1] 7/12
make [7] 4/11 4/20 9/12 11/2 11/22 not [30]
interjects [1] 11/11
12/25 15/24 notes [1] 17/12
interrogatories [3] 2/19 12/24 13/2
makes [2] 3/8 5/9 November [1] 1/10
interrogatory [1] 5/16
making [2] 4/16 16/19 now [6] 8/15 10/1 10/15 11/10 13/23
into [4] 3/19 13/2 13/25 14/16
many [3] 8/24 8/24 8/24 15/6
investigation [1] 13/6
material [4] 11/9 11/14 12/9 15/14 number [1] 16/1
investments [1] 13/19
matter [3] 7/1 13/5 15/10 NYCRR [1] 8/10
is [47]
may [4] 4/21 8/23 14/12 16/22
issue [6] 2/21 3/1 4/9 16/10 16/11 16/15
maybe [2] 9/7 15/22 O
it [58] obligation [1] 4/22
me [16] 2/12 3/10 3/11 3/23 4/11 5/3
it's [27] obviously [2] 10/3 10/6
5/24 8/7 8/10 11/16 11/18 11/23 13/3
J 13/5 15/18 16/3 occasion [1] 9/1
mean [10] 3/16 4/21 5/9 5/22 6/6 6/21 occurred [3] 6/7 6/11 13/5
JOEL [1] 1/12
7/22 8/21 9/20 10/15 odd [1] 5/9
join [1] 13/19
means [3] 4/18 4/25 5/1 odds [1] 9/8
judge [7] 3/13 4/12 8/25 13/14 16/21
meant [3] 9/24 12/20 16/1 off [3] 5/13 5/15 5/20
17/3 17/4
measure [1] 15/7 offers [1] 3/3
judges [1] 9/1
meat [1] 13/17 official [3] 1/25 17/10 17/15
just [22]
memorandum [1] 14/3 okay [6] 2/9 10/8 12/8 12/21 12/25
Justice [1] 1/12
message [1] 12/11 13/12
K Microsoft [1] 1/11 Old [2] 1/18 2/7
might [2] 7/18 11/1 on [18]
kind [2] 7/22 10/5
million [2] 6/18 7/4 one [6] 8/10 8/18 10/7 11/25 13/4 15/7
knew [4] 11/25 12/10 13/9 16/20
millions [2] 7/10 7/10 only [2] 6/8 15/6
know [23]
minimization [1] 16/4 opinion [1] 11/24
knowing [3] 4/14 9/7 11/13
minimizes [1] 15/1 opportunities [1] 13/22
knowingly [3] 4/16 5/4 11/13
mislead [1] 12/8 opposition [1] 2/18
known [1] 5/17
misplaced [1] 3/8 or [16] 2/24 2/24 7/22 8/1 8/8 8/8 8/25
knows [2] 4/25 8/15
misrepresentation [1] 14/7 9/20 10/20 12/7 13/5 13/9 13/10 15/4
L misstatement [1] 15/14 15/25 16/12
language [2] 15/17 15/20 mistake [4] 8/8 10/11 15/20 16/24 order [3] 16/15 17/6 17/7
large [2] 12/3 13/11 misunderstanding [4] 4/17 12/17 12/18 other [8] 2/11 8/14 8/21 9/10 10/6 13/22
last [2] 2/12 4/19 14/15 15/16 16/12
late [1] 2/19 misunderstood [1] 3/15 otherwise [1] 3/18
law [5] 1/14 1/17 8/24 9/1 9/6 molehill [2] 15/1 15/9 our [3] 6/12 13/17 13/17
lawsuit [1] 10/3 money [4] 6/14 14/10 14/11 14/13 out [3] 3/24 6/14 8/4

20 of 22
FILED: ONEW YORK COUNTY CLERK INDEX NO. 652122/2019
R 01/22/2021 12:27 PM
serious [1] 15/9
NYSCEF DOC. NO. 138[1] 6/14 seriousness [1] 15/1NYSCEF: 01/22/2021
RECEIVED
out-of-pocket rampant [1] 11/19
SHERYL [1] 1/7
over [19] rather [1] 2/22
should [4] 5/17 8/17 12/6 15/8
owing [1] 10/19 reach [2] 5/25 16/13
shouldn't [1] 8/9
read [1] 15/2
P really [6] 8/22 9/4 11/16 11/16 11/21
show [2] 11/13 13/2
paid [19] showing [1] 2/22
12/10
paper [1] 10/12 side [3] 2/12 11/19 15/17
reason [1] 12/3
papers [1] 8/14 signed [2] 5/15 5/20
record [7] 10/12 15/11 15/12 15/22 16/2
Park [1] 1/15 significant [2] 8/17 15/3
16/17 16/18
part [4] 1/2 11/8 13/7 15/3 since [1] 2/11
recover [3] 3/25 7/25 9/24
parties [1] 7/24 single [1] 9/2
reference [1] 16/15
party [2] 4/15 5/14 situation [1] 8/18
refers [1] 14/4
pay [11] 3/2 4/22 6/16 8/1 8/9 9/15 9/22 reimburse [1] 4/2 slate [1] 15/24
9/25 9/25 14/13 14/16 so [30]
reimbursed [2] 4/7 4/8
paying [4] 4/1 5/18 9/16 9/17 solely [1] 10/20
reimbursement [1] 3/3
PC [1] 1/17 some [4] 2/10 3/4 5/12 16/12
relief [1] 14/6
penal [1] 10/10 somebody [4] 6/22 7/3 7/9 15/18
remedy [3] 7/7 7/11 8/2
penalty [1] 8/17 something [1] 8/21
repay [1] 4/1
pending [1] 15/5 soon [1] 14/15
repeated [1] 13/11
penny [1] 11/25 sophisticated [1] 6/3
repeatedly [1] 6/15
people [3] 9/7 11/20 11/22 sophistication [1] 14/12
repetition [2] 10/13 11/4
people's [1] 9/8 sorry [6] 9/3 9/4 9/4 10/23 11/8 12/17
reporter [3] 1/25 17/10 17/15
perfect [1] 5/7 sort [6] 4/21 4/25 7/2 8/16 15/6 15/19
request [1] 15/13
perjurer [1] 14/21 Spa [2] 4/1 6/17
requests [1] 8/6
perjury [6] 4/14 4/15 10/25 11/11 11/18 required [2] 3/2 11/3 speak [1] 13/9
14/5 specific [1] 10/14
requires [2] 8/11 13/7
perpetrate [1] 5/4 spent [2] 3/18 3/18
resisted [1] 12/14
perplexing [1] 5/7 spoiler [1] 8/4
respond [1] 8/23
person's [1] 10/5 square [2] 3/11 10/9
responding [1] 8/5
persuade [1] 5/24 standing [2] 6/23 7/9
response [4] 13/1 14/9 14/14 15/4
persuaded [2] 15/19 16/3 start [2] 2/2 2/11
responses [2] 2/18 5/16
PETER [2] 1/16 2/5 STATE [2] 1/1 17/11
rest [1] 5/22
plainly [1] 16/6 statement [1] 16/5
result [4] 13/23 13/24 14/14 17/1
plaintiff [4] 1/5 2/3 2/5 3/5 statements [11] 2/13 3/11 4/16 8/13
resulted [1] 7/4
pleadings [1] 14/22 11/9 11/15 11/22 12/9 16/5 16/16 16/20
revenues [1] 6/18
pleased [1] 16/4 statute [2] 11/7 14/6
right [6] 6/21 7/15 7/22 9/21 10/1 13/17
pocket [1] 6/14 stay [1] 7/1
Road [2] 1/18 2/7
point [7] 5/12 5/14 8/3 10/16 14/13 stenographic [1] 17/12
rough [1] 2/10
14/24 15/6 step [1] 4/12
ruling [1] 16/7
possible [1] 7/17 stipulate [1] 16/14
possibly [1] 8/18 S straightforward [1] 8/7
potential [1] 7/20 said [5] 6/7 9/21 12/16 14/14 15/21 strains [1] 6/2
presupposes [1] 2/25 same [1] 9/3 struggling [1] 7/2
pretty [1] 8/6 sanction [2] 14/18 15/14 submit [1] 16/12
prevarication [1] 6/9 sanctions [6] 2/10 4/14 8/10 10/10 submitted [1] 16/8
probably [1] 15/5 12/10 15/25 subrogated [2] 6/21 7/16
problem [1] 4/11 saw [2] 3/6 14/15 subrogation [1] 7/15
problems [1] 15/16 say [14] 4/18 4/21 5/6 6/23 8/13 11/21 substantially [1] 6/23
Proceeding [1] 1/11 12/15 13/4 14/20 14/21 14/24 15/11 successful [2] 11/6 14/8
process [1] 5/9 15/18 16/23 sue [3] 6/15 7/23 10/6
produce [1] 2/21 saying [7] 2/15 2/22 5/17 5/20 6/10 7/25 sufficiently [1] 15/22
proof [1] 6/11 12/25 suggest [1] 5/6
prosecution [1] 11/12 says [10] 3/1 3/16 11/1 11/7 11/8 12/18 support [2] 13/10 14/3
prove [1] 10/7 12/22 12/23 12/23 12/24 supporting [1] 16/9
provide [3] 3/4 10/4 13/10 school [2] 8/25 9/1 SUPREME [1] 1/1
public [2] 6/17 11/6 second [1] 16/19 suspect [1] 16/3
published [1] 13/24 seeing [1] 11/3 sworn [1] 16/5
purposes [1] 11/8 seek [2] 3/3 10/3 system [1] 8/20
purview [1] 11/12 seeking [1] 5/17 T
push [1] 9/10 seem [1] 3/11
take [1] 4/12
pushed [2] 9/11 9/12 seems [2] 2/12 8/7
talking [1] 4/5
put [5] 2/12 12/16 12/25 13/1 13/2 seen [1] 10/17
Teams [1] 1/11
send [1] 12/11
Q sense [2] 9/12 9/22
tell [2] 15/2 15/23
quasi [1] 8/11 telling [1] 16/2
sent [1] 3/23
question [7] 5/24 8/9 8/16 10/10 10/18 sentencings [1] 9/2 TERM [1] 1/2
12/19 13/14 terms [1] 10/9
separate [3] 10/18 13/2 15/14
terribly [1] 14/25
September [2] 2/20 3/1
Terry [3] 1/24 17/10 17/14
September 1 [1] 2/20

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FILED: TNEW YORK COUNTY CLERK INDEX NO. 652122/2019
venal01/22/2021
[1] 8/17 12:27 PM
you've [1] 16/10
NYSCEF DOC. NO. 138 very [4] 7/19 9/3 9/3 16/23 your [13] 2/4 2/6 2/13
RECEIVED 2/19 3/1 6/1
NYSCEF: 6/6
01/22/2021
Terry-Ann [3] 1/24 17/10 17/14
view [1] 9/22 7/8 7/23 8/8 8/23 16/9 16/24
testify [3] 6/2 13/20 15/23
Volberg [3] 1/24 17/10 17/14
than [4] 2/22 9/11 15/5 16/1 Z
Thank [4] 16/21 17/2 17/3 17/4 W zero [1] 15/25
that [124]
wait [1] 3/6
that's [17] 2/14 2/17 2/17 3/14 4/9 7/14
want [1] 6/1
7/19 10/2 10/11 10/15 11/2 12/9 14/5
wanted [2] 11/24 12/1
14/10 14/22 16/1 16/7
wants [1] 15/23
their [1] 8/19
was [44]
them [5] 4/2 6/17 8/1 12/20 16/10
wasn't [3] 4/15 4/15 14/6
then [7] 3/3 3/3 3/24 6/16 7/10 9/24
watch [1] 9/1
12/10
way [2] 8/4 10/24
theoretically [1] 7/17
we [20]
theory [1] 7/8
well [13] 2/9 2/23 2/23 3/13 4/18 6/10
there [11] 2/20 2/23 2/25 3/17 5/11 7/6
7/12 8/10 9/19 10/13 12/21 14/10 15/18
7/13 7/14 11/14 11/25 16/22
went [1] 5/13
there's [4] 6/11 6/13 7/10 7/18
were [13] 2/20 2/22 2/25 3/17 5/10 5/11
these [9] 3/11 5/11 5/11 5/15 6/4 6/12
5/12 6/12 6/18 9/3 9/4 11/15 12/9
8/14 12/2 12/22
weren't [1] 9/4
they [24]
what [23]
thing [3] 4/20 6/8 9/3
whatever [2] 8/8 12/3
things [1] 5/15
when [9] 3/1 3/14 3/14 8/24 10/3 12/18
think [25]
13/22 14/9 15/2
thinks [1] 15/21
where [18]
this [39]
whether [9] 2/21 5/25 6/1 8/16 10/11
those [5] 4/13 6/16 8/11 10/22 13/25
10/19 13/9 13/9 15/25
thought [4] 6/14 8/18 9/9 9/23
which [14] 2/25 3/7 3/21 3/22 4/19 5/9
thousands [1] 3/17
5/17 8/11 10/21 11/12 13/7 13/24 14/25
threat [1] 16/1
15/15
three [1] 8/25
while [1] 15/5
through [1] 3/10
who [5] 5/14 7/15 9/6 9/6 13/20
throughout [1] 14/3
whoever [1] 9/25
together [1] 2/12
whole [3] 5/9 10/21 10/25
told [1] 5/3
why [1] 10/2
too [1] 15/17
wife [1] 6/15
took [1] 14/19
will [14] 5/22 5/24 8/21 10/4 10/7 12/15
tort [1] 8/1
13/20 15/2 15/11 15/12 15/24 16/15
tougher [1] 8/9
17/6 17/7
transcript [3] 17/6 17/7 17/12
wire [9] 3/4 3/6 3/13 3/14 3/23 4/4 4/6
transfer [6] 3/13 3/14 3/23 4/6 4/10
4/10 14/15
14/15
withdraw [1] 13/21
transfers [3] 3/4 3/6 4/4
withdrawn [1] 10/2
TRIAL [1] 1/2
withdrew [1] 14/17
trouble [1] 13/8
without [1] 11/3
true [1] 17/12
witness [1] 13/20
trying [1] 5/4
won't [1] 16/25
turn [1] 13/24
woods [1] 4/24
two [2] 13/2 13/20
word [6] 2/14 2/15 4/21 4/23 4/25 12/4
U words [5] 8/21 9/24 10/9 10/14 11/5
work [1] 10/2
ultimately [2] 6/24 10/7
works [1] 8/20
umbrage [1] 3/7
would [14] 2/11 6/8 6/15 6/21 6/24 6/24
under [3] 7/8 8/10 14/6
7/6 7/15 8/19 9/11 10/7 13/4 15/3 16/12
understand [5] 4/11 5/19 11/1 12/20
wouldn't [4] 3/5 3/18 6/25 7/5
14/24
written [3] 15/11 15/12 15/22
understanding [1] 6/12
wrong [1] 9/20
understood [2] 14/16 14/20
wrote [1] 12/1
unless [1] 16/13
unravel [1] 8/9 Y
until [2] 3/6 3/23
Yeah [1] 6/20
untrue [1] 16/20
year [2] 6/18 15/6
up [3] 7/9 8/1 14/1
years [1] 8/24
upset [1] 11/16
yes [5] 7/17 9/18 14/7 14/14 17/7
use [3] 2/14 10/5 10/14
yet [1] 6/8
used [3] 4/23 11/5 12/4
YORK [7] 1/1 1/2 1/15 1/15 1/18 2/8
V 17/11
you [56]
valiant [1] 4/20
you're [4] 5/19 7/25 10/6 16/19
various [2] 8/6 8/14

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