SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL DIV. : PART X RELIABLE ABSTRACT CO.

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1 FILED: NEW YORK COUNTY CLERK 06/09/ :20 PM INDEX NO /2014 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 06/09/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL DIV. : PART X RELIABLE ABSTRACT CO., LLC, Plaintiff, - against - 45 JOHN LOFTS, LLC and JOHN DOES 1-10, Index No /14 Defendants X INQUEST B E F O R E A P P E A R A N C E S : 60 Centre Street New York, New York June 3, 2016 HON. BARRY R. OSTRAGER, Justice CARTER LEDYARD & MILBURN LLP Attorneys for Plaintiff 2 Wall Street New York, N.Y BY: JACOB H. NEMON, ESQ. JEFFREY FLEISCHMANN, ESQ. Attorney for Defendants 65 Broadway - 7th Floor New York, N.Y ROBERT PORTAS, R.P.R., C.R.R. SENIOR COURT REPORTER 1 of 59

2 1 PROCEEDINGS COURT OFFICER: All rise. 2 2 Please be seated. 3 COURT OFFICER: Parties on Reliable Abstract, John Lofts, please set up at the table. to the jury box. Plaintiff closest proceed this morning? MR. NEMON: All right, both sides are prepared to Yes. All right I understand, Mr. Fleischmann, that you're heroically attempting to extricate Mr. Miller from the default judgment that was entered on August 17, 2015 by 13 Justice Marks. I've reviewed the extensive submissions of the parties, I've entertained oral argument and I've previously expressed chagrin that you moved by order to show cause to vacate a default judgment on May 31, 2016 when the default judgment was entered in August of Nevertheless, I've considered all of the arguments that you've made, I've concluded that you haven't made a showing sufficient to satisfy your burden of establishing that service on Mr. Miller was improper. The record in the case makes it clear that, in addition to there having been improper service in the case, Mr. Miller was well aware of the proceedings in this court that gave rise to the default judgment, and, 2 of 59

3 PROCEEDINGS consequently, I find that service on Mr. Miller was proper. I further find that Mr. Miller's proffered excuses for failing to appear in connection with the proceedings that led to the issuance by Justice Marks of the default judgment do not begin to rise to the level of excusable neglect, and, consequently, under neither CPLR 317 or under CPLR 1505{a) can the default be excused. The order to show cause seeking to vacate the default judgment was filed within 48 hours of when an 3 12 inquest was scheduled to take place in this case. That inquest had been scheduled at least a month ago, and so we are going to proceed with the inquest MR. NEMON: your first witness? Thank you, Your Honor. So, Mr. Nemon, you're going to put on MR. NEMON: Yes. Plaintiffs call Jacob Deckelbaum as our witness. COURT OFFICER: Watch your step. Please remain standing in front of the chair. 22 THE CLERK: Raise your right hand YAAKOV DECKELBAUM, called as a witness on behalf of the Plaintiff, having been first duly affirmed by the clerk of the court, was 3 of 59

4 1 Y.DECKELBAUM-DIRECT/Nemon examined and testified as follows: 4 2 THE CLERK: Please state your name and address for the record, spelling both for the reporter. THE WITNESS: Yaakov Deckelbaum. Y-A-A-K-0-V. Deckelbaum: D-E-C-K-E-L-B-A-U-M East 13th Street, Brooklyn, New York THE CLERK: You may be seated, sir. 8 DIRECT EXAMINATION 9 BY MR. NEMON: 10 Q Good morning, Mr. Deckelbaum. 11 A Good morning. 12 Q Before we begin: Are you known by any other name? 13 A Jacob Deckelbaum. 14 Q Thank you. 15 Please state your -- what you do professionally. 16 A I run a company, Reliable Abstract, and I'm also an 17 attorney admitted to practice in New York. 18 COURT OFFICER: Keep your voice up, sir. 19 Q Do you practice law? 20 A Yes, I do. Yes, I do. 21 Q And what is your educational background, please? 22 A I went to law school, graduated in Q And where have you practiced law? 24 A I previously worked in a law firm Dechert, Price & 25 Rodes, in New York City. 4 of 59

5 Y.DECKELBAUM-DIRECT/Nemon 5 1 Q And how long have you worked with Reliable Abstract? 2 A I've been there the past fifteen years. 3 Q Sorry? 4 A Fourteen years. The past fourteen years. 5 Q And what is the nature of Reliable Abstract's business? 6 A We are a title insurance business. We do title 7 reports, real estate closings. 8 Q And has -- is Reliable Abstract a plaintiff in this 9 lawsuit? 10 A Yes, it is. 11 Q And were you the person who verified the complaint in 12 this lawsuit? 13 A Yes, I was. 14 Q And what was the nature of this lawsuit? 15 A This lawsuit stemmed from a -- a -- a short term loan 16 that was made to a company, 45 John Lofts, LLC, in March 7, We were promised by the company that we will be repaid 18 in a day or two after the loan was made. The loan was made 19 to -- it was a -- there was a shortage of funding at the 20 closing and we provided $1,970,000 and we were promised to be 21 repaid a day or two later, and we were not repaid. 22 Q Let's take a step back. Which individuals did you dea 23 with in relation to the company, 45 John Lofts? 24 A The main individual we dealt with was someone Sam 25 Sprie who was Mr. Miller's partner and agent on real estate 5 of 59

6 Y.DECKELBAUM-DIRECT/Nemon 1 transactions and 6 2 I'm having difficulty hearing you. 3 MR. NEMON: Can we move the microphone a little 4 bit closer? 5 COURT OFFICER: He has to come closer to the 6 microphone. 7 THE WITNESS: Sorry. You want me to repeat that? 8 COURT OFFICER: Please speak clearly and raise 9 your voice as much as you can. 10 THE WITNESS: Okay. 11 Q Could you just repeat your last answer. 12 A I dealt mainly with Sam Sprie, who was working with 13 Mr. Miller at that time. He represented Miller on all his Mr. Miller's real estate transactions. 15 Q Have you dealt with Mr. Miller or Mr. Sprei previously? 16 A Yes. I've dealt with them several times. 17 Q In what capacity did you work with them or in what 18 MR. NEMON: Strike that. 19 Q What was the nature of your prior dealings with 20 Mr. Sprei? 21 A Well, Mr. Sprei was a -- he was -- at that time he was 22 buying a lot of real estate from Mr. Miller, and Mr. Miller 23 would basically allow Mr. Sprei to negotiate all - all manners 24 of real estate transactions on his behalf. Mr. Sprei would 25 negotiate with the seller, Mr. Sprei would negotiate with the 6 of 59

7 7 Y.DECKELBAUM-DIRECT/Nemon 1 lenders, with the investors, all on Mr. Miller's behalf. 2 Q And did you ever make any loans to Mr. Sprei or 3 Mr. Miller? 4 A Yes, I did. 5 Q And were they paid back? 6 A Yes, they were. 7 Q And how were they paid back? 8 A They were mostly paid back by wire transfer. 9 Q And were they paid by -- Do you know what entity made 10 those payments? 11 A I don't recall all the different transactions that we 12 went through at that time. 13 Let me understand this: Mr. Miller 14 was purchasing 45 John Lofts? THE WITNESS: Correct. Okay transaction? And you were providing title insurance for the 19 THE WITNESS: On this transaction I didn't really 20 provide title insurance THE WITNESS: I'm sorry? On this transaction I did not 23 provide title insurance. The title insurance I think was given by a different company. So what was your involvement with the 7 of 59

8 1 Y.DECKELBAUM-DIRECT/Nemon 45 John Lofts transaction? 8 2 THE WITNESS: I was just -- I wasn't really involved in the transaction other than at the closing I got a call saying that they were short of funds, about $2 million short, and if I could give them a short term loan to bridge their funding because they had an investor that had deposited money into their attorney's account and it hadn't cleared yet and that the funds would be returned to me in the next day or two. 10 Okay So the basic claim here is that Mr. Miller, through Mr. Sprei, was purchasing 45 John Lofts, and even though you were not involved in the transaction in any way, shape or form you got a call from either Mr. Miller or Mr. Sprei and they asked you if you could advance them close to $2 million to close the transaction and you said "Sure." 18 THE WITNESS: It was based on -- that's -- that's 19 basically what happened. I did speak to 45 John's' 20 attorney at the time, Ann Hsiung MR. NEMON: THE WITNESS: The defendant, Ann Hsiung? The defendant, Ann Hsiung And, you know, she did say that she would be sending me a check for $2 million in the next day or two to repay me. And based on that I made the loan. 8 of 59

9 1 Y.DECKELBAUM-DIRECT/Nemon Okay And what was your -- what was your historic relationship with Mr. Miller that gave you confidence that it was in your interest to write a check for $2 million or $1,973,000 for their benefit in connection with the purchase of this building? 7 THE WITNESS: Well, on several occasions prior to that Mr. Miller and Mr. Sprei was in need of short term funds, and which I provided on occasion and I was repaid by Mr. Miller and Mr. Sprei several times, and so sort of -- and based on that, and on my conversation with Ann Hsiung I had confidence that they would repay me. the case. And that wasn't 14 And were you to receive any benefit for advancing this money in terms of interest or other consideration? 17 THE WITNESS: We didn't discuss any return of 18 interest or any other consideration. It was understood it would be a short term loan and to be repaid in the next day or two Mr. Miller? And how long have you known THE WITNESS: I've known him for a few years. A few years prior to that. Are there people other than Mr. Miller 9 of 59

10 10 Y.DECKELBAUM-DIRECT/Nemon 1 who you've extended multi million dollar short term loans 2 to? 3 THE WITNESS: No. 4 I'm sorry I interrupted you. 5 MR. NEMON: That's okay. Those were very helpful 6 questions. 7 BY MR. NEMON: 8 Q Just as a point of clarification: When you say there 9 was a closing on a purchase, was it a closing on a purchase of 10 property or on an LLC interest? 11 A The closing was for the purchase of the building known 12 as 45 John Street in Manhattan. 13 Q And 45 John Lofts, LLC, do you understand what that 14 entity was? 15 A I believe that entity was a purchaser of that - of 16 the real estate. 17 Q And did you in fact wire money to Mr. Miller or 18 Mr. Sprei or any entity that they were involved in? 19 A Yes. At the direction of Mr. Sprei I wired funds to 20 an account which he said would be the sort of clearing account 21 for that real estate transaction. And I wired money to a -- to 22 that account. 23 Q 24 A 25 Q What was the amount of that wire? $1,970,000. And what was the account -- what was the entity on the 10 of 59

11 Y.DECKELBAUM-DIRECT/Nemon 1 account that you wired money to? 11 2 A I believe it's Sullivan 90 Holdings, LLC. 3 Q And did you understand if that was an entity that 4 belonged to Mr. Sprei or Mr. Miller? 5 A Yes. I believe that was an entity that belonged to 6 Mr. Miller. 7 Q Do you know if Mr. Sprei had any interest in that 8 entity? 9 A I'm not sure if he did. I'm not sure. But I know 10 that Mr. Miller was the managing member of that entity. 11 Q Do you know if Mr. Sprei had any interest in 45 John 12 Lofts? 13 A I'm not sure what his interest is. 14 Q Did you make demands at any point after the March 7 15 wire for the return of the funds? 16 A Yes. A day or two after the wire when I was supposed 17 to receive the check I didn't receive it. I called the office 18 of Ann Hsiung inquiring as to when I'll receive that check, I 19 didn't get through to her for a day or two until a few days 20 later she responded that she will be sending me a check of the 21 return of the million nine seventy. 22 A few days after that I get a letter from Ann Hsiung 23 together with a check for the million nine seventy with a note 24 stating that the investors who deposited the funds into her 25 account have not yet cleared and I should not -- I shouldn't 11 of 59

12 Y.DECKELBAUM-DIRECT/Nemon 1 deposit the check until I get her okay I called her several times and she said, "Look, the 3 check is not good, you can't deposit it. 11 And that was the end 4 of that. 5 Q Do you recall the precise amount written on the check? 6 A I believe it was $2 million. 7 Q And did you make any further demands or requests to 8 deposit the check, permission to deposit the check? 9 A Well, like I said, I I called several times and I 10 was told eventually that -- that the check was no good and I 11 should not deposit it. At that point I made many calls to 12 Mr. Sprei, Mr. Miller down the road about the returning of 13 funds and I have not received a return of funds. 14 MR. NEMON: May I introduce what we will mark 15 as -- could we mark this as Plaintiff's Exhibit A for 16 identification? 17 That will be Plaintiff's Exhibit (A document was marked Plaintiff's Exhibit 1 19 for identification.) 20 COURT OFFICER: So marked, Your Honor. 21 BY MR. NEMON: 22 Q Mr. Deckelbaum, the court reporter has placed in front 23 of you what's been marked as Plaintiff's Exhibit 1 for 24 identification. Do you recognize this document? 25 A Yes. 12 of 59

13 1 Q 2 A 3 Q 4 A 5 Q 6 A Y.DECKELBAUM-DIRECT/Nemon What do you recognize it to be? This is a bank statement. From which bank? From Chase Bank. And whose bank statement is this? It's for Reliable Abstract Q Do you recognize the month of this bank statement? 8 A Yes. March. 9 Q 10 A 11 Q March of what year? And was this bank statement provided to you by Chase 12 Bank? 13 A 14 Q 15 A 16 Q Yes, it was. And "You," meaning Reliable Abstract, LLC; correct? Correct. And do you have -- Does Chase Bank regularly send you 17 statements of your account? 18 A Yes, they do. Every month. 19 Q And do these statements accurately reflect the 20 transactions that -- of Reliable Abstract? 21 A Yes, they do. 22 Q And when you look at the document in front of you, 23 you'll notice that there's what appears to be some redactions. 24 A Correct. 25 Q Do you know who made those redactions to this document? 13 of 59

14 Y.DECKELBAUM-DIRECT/Nemon 14 1 A Yeah. We made these redactions -- we made the 2 redactions. 3 Q When you say "We," who are you referring to? 4 A I did it. Myself. 5 Q And what -- what are the -- what was redacted out of 6 this document? 7 8 Mr. Nemon, I have Exhibit 1. Every single -- beginning balance, ending balance and every 9 10 single transaction is redacted. essentially blank statement. So the document is just a 11 MR. NEMON: If Your Honor looks on Page 2 there's a transaction from 3/7 that is not redacted, and that's what I'm trying to get the witness to Okay, so you're trying to establish that on March 7th there was a book transfer debit to Sullivan 90 Holdings, LLC, Brooklyn MR. NEMON: MR. NEMON: Correct. Okay. I just want to get -- I just want to show that the witness has knowledge how this document came to be. It's a bank statement. It's admitted into evidence. MR. NEMON: All right. So what's Sullivan 90 Holdings, LLC, 14 of 59

15 1 Y.DECKELBAUM-DIRECT/Nemon Brooklyn? 15 2 THE WITNESS: That's a -- that's an entity that's 3 controlled by Mr. Miller that was the I guess the -- the 4 account. The way I was told was that 45 John did not have an account established yet in a bank account, it was a new entity, so they used this entity. And this entity, all the funds ran through this entity to close -- to close the 45 John transaction. How do I know that Sullivan 90 Holdings, LLC, Brooklyn, New York was controlled by Mr. Miller? controlled -- THE WITNESS: Well, I happen to know that it's any proof? That's your testimony. Do you have 16 THE WITNESS: If I would have a chance to get 17 proof THE WITNESS: I'm sorry? I believe I could -- I don't have proof on me right now, but I believe I could definitely establish that. 22 Well, that would be for your lawyer to do, because right now all -- the only evidence we have here is that you made a $1,970,000 transfer to Sullivan 90 Holdings, LLC. I have no idea what Sullivan 90 Holdings, 15 of 59

16 Y.DECKELBAUM-DIRECT/Nemon 1 LLC is and what its relationship is to Mr. Miller Go ahead, Mr. Nemon. 3 (Plaintiff's Exhibit 1 previously marked for 4 identification was received in evidence.) 5 MR. NEMON: Your Honor, I believe we will be able 6 to connect up the connection between Sullivan 90 and 7 Mr. Miller very easily based on testimony given by Mr This is your inquest. 9 MR. NEMON: Understood. 10 Q And just one final question: Does the -- in 11 Plaintiff's Exhibit 1, the March 7th transaction, does that 12 accurately reflect the wire transfer that Okay, it's in evidence, it speaks for 14 itself. There was a wire transfer made to 90 Sullivan. 15 MR. NEMON: Right. 16 Do you have any other questions of the 17 witness? 18 MR. NEMON: Yes. 19 I introduce -- Court Reporter, can I ask you 20 please marks this as Plaintiff's Exhibit 2 for 21 identification? 22 (A document was marked Plaintiff's Exhibit 2 23 for identification.) 24 COURT OFFICER: Plaintiff's Exhibit 2 marked for 25 identification. 16 of 59

17 Y.DECKELBAUM-DIRECT/Nemon 1 BY MR. NEMON: 17 2 Q Do you recognize the document -- the set of documents 3 that have been placed in front of you? 4 A Yes. 5 Q What do you recognize it to be? 6 A This is an from Ann Hsiung. 7 Q And there's three other pages. Do you recognize what 8 those are? 9 A Yes. There's a Fed Ex label and a letter from Ann 10 Hsiung dated March 12, Q And do you -- was the on Page 1 sent to you? 12 A Yes, it was. 13 Q And do you remember receiving that ? 14 A Yes. 15 Q And the rest of the documents, do you remember if thos 16 were attachments to the ? 17 A Yes. I believe they were attachments. 18 MR. NEMON: I'd like to move for this to be 19 admitted into evidence. 20 Okay. So admitted. 21 (Plaintiff's Exhibit 2 previously marked for 22 identification was received in evidence.) 23 What's the status of the case against 24 Ms. Hsiung? 25 MR. NEMON: It's been voluntarily discontinued. 17 of 59

18 Y.DECKELBAUM-DIRECT/Nemon 18 1 There was a stipulation of discontinuance between plaintiff 2 and Miss Hsiung after her deposition in December. 3 Okay. 4 Was there any settlement associated with that 5 discontinuance? 6 MR. NEMON: It was a -- it was a decision after 7 her deposition that 8 I'm sorry? 9 MR. NEMON: There was a decision made after her 10 deposition not to move forward with the case against her 11 based on information learned at the deposition. 12 Okay. 13 BY MR. NEMON: 14 Q If you turn to the third page of this document, it 15 appears to be a letter on Miss Hsiung's letterhead; correct? 16 A Correct. 17 Q And the says The documents speak for themselves Miss Hsiung told the witness that, "Here's the check for $2 million. Don't -- don't deposit it until you hear from me." 22 MR. NEMON: I wanted to direct the witness' 23 attention to the first sentence of that. 24 It says, "Attached please find the 25 check of $2 million payable to Reliable Abstract for 18 of 59

19 1 Y.DECKELBAUM-DIRECT/Nemon 4 5 John Street property Q What is your understanding why Miss Hsiung was sending 3 you a check for $2 million payable for the 45 John Street 4 property? 5 A That was supposed to be a check that would be payment 6 for the wire that I made to them. 7 Q And do you understand Turn to the last page. The 8 last page there's a check from Ann Hsiung to Reliable Abstract 9 and the memo says, "For 45 John Street. Payment approved by... " 10 Do you recognize the signature on the last page, where it says 11 "Payment approved by"? 12 A I can't say definitively, but I believe it was Sam 13 Sprie. 14 Q And that signature says -- it appears to say "SS"; 15 correct? 16 A Correct. 17 Q And dated March 12, 2014? 18 A Correct. 19 Q And do you understand that there is any connection 20 between the check for $2 million and the wire transfer of 21 $1.97 million in Exhibit l? 22 A Yes. That check was supposed to be a repayment of the 23 wire. 24 MR. NEMON: Court Reporter, can you please mark 25 this as Plaintiff's Exhibit 3 for identification. 19 of 59

20 20 Y.DECKELBAUM-DIRECT/Nemon 1 (A document was marked Plaintiff's Exhibit 3 2 for identification.) 3 COURT OFFICER: Plaintiff's Exhibit 3 marked for 4 identification. 5 Q The court reporter's placed before you a document 6 marked as Exhibit 3. Do you recognize the document? 7 A Yes. 8 Q What do you recognize it to be? 9 A This was a short -- a document signed by Mr. Sprei 10 just identifying various obligations that he had to me at that 11 time. 12 Q And do you know when document was signed? 13 A April 1, Is this an unrelated transaction? 15 THE WITNESS: What's that? 16 This is a transaction unrelated to John Lofts? 18 THE WITNESS: I mean, one part of the -- one small 19 part one part of it was related. The first one, "I," it 20 says there was a balance owed for the monies that I 21 advanced him for 45 John Street. That's the only thing 22 that's related. 23 MR. NEMON: I'd like to move this into evidence. 24 MR. FLEISCHMANN: I object, Your Honor. I'm not 25 sure this establishes of 59

21 1 Y.DECKELBAUM-DIRECT/Nemon I'm sorry? MR. FLEISCHMANN: I object, Your Honor. I'm not sure that we've established who signed this or anything like that. MR. NEMON: May I ask the questions some more -- the witness some more questions? Mr. Sprei? THE WITNESS: You received this document from Yes. Okay. 11 BY MR. NEMON: 12 Q And do you recognize the signature to belong to 13 Mr. Sprei? 14 A Yes. 15 MR. NEMON: I'd like to move for this document to 16 be admitted into evidence. 17 Okay. It's admitted. 18 (Plaintiff's Exhibit 3 previously marked for 19 identification was received in evidence.) 20 COURT OFFICER: Plaintiff's Exhibit 3 moved into 21 evidence. 22 MR. NEMON: I ask the court reporter to mark this 23 as Plaintiff's Exhibit 4 for identification. 24 (A document was marked Plaintiff's Exhibit 4 25 for identification.) Robert Portas, RPR, CRR 21 of 59

22 Y.DECKELBAUM-DIRECT/Nemon 22 1 COURT OFFICER: Plaintiff's Exhibit 4 marked for 2 identification. 3 Q Mr. Deckelbaum, do you recognize what's been marked as 4 Plaintiff's Exhibit 4? 5 A Yes. 6 Q What is this document? 7 A It's an sent to me by Mr. Sprei and -- and Harry 8 Miller, Mr. Miller. 9 Q Do you know what Mr. Sprei's address is? 10 A Oldenequitiesgroup@gmail.com. 11 Q And have you communicated with Mr. Sprei with 12 address oldenequitiesgroup@gmail.com before? 13 A Yes, I did. 14 Q And have you received correspondence from Mr. Sprei 15 from that address prior to this ? 16 A Yes, I did. 17 Q And have you -- do you know Mr. Miller's address? 18 A Yes. 19 Q What is it? 20 A Acumen@prodigy.net. 21 Q And have you corresponded with Mr. Miller through that 22 address before? 23 A Yes. 24 Q And do you know that to be Mr. Miller's address? 25 A Yes. 22 of 59

23 Y.DECKELBAUM-DIRECT/Nemon 23 1 Q And did you receive this on or about Monday, 2 May 19, 2014? 3 A Yes. 4 MR. NEMON: I move that this be admitted into 5 evidence. 6 All right, it's received. 7 (Plaintiff's Exhibit 4 previously marked for 8 identification was received in evidence.) 9 COURT OFFICER: So marked, Your Honor. 10 Q Mr. Deckelbaum, I notice that in the middle of the pag 11 there's an that you had sent. Am I reading this correctl 12 that you had sent an on May 19, 2014 at 1:06 p.m.? 13 A Correct. 14 Q And in the body of that you say, "Chaim... " 15 Who's Chaim? 16 A Chaim is Mr. Miller. 17 Q And "Shimmy"? 18 A That's Mr. Sprei. 19 Q "Please confirm, as per the attached, that the 20 following will be repaid to me from the proceeds." And the 21 first line item there is "2,000 --" I'm sorry "$2,050,000, 22 balance owed from 761 East 78th Street and 45 John Street"; 23 correct? 24 A 25 Q Correct. And what is your understanding of the breakdown of tha 23 of 59

24 1 balance? Y.DECKELBAUM-DIRECT/Nemon 24 2 A That it was a million nine seventy was owed for 45 3 John and the balance was for -- was owed from 761 East 4 78th Street. 5 Q And had there -- I notice that on Exhibit 3 it said 6 that the amount was approximately two and a half million dollar 7 on those two properties, but it changed on Exhibit 4. Do you 8 understand why there was that change in the balance? 9 A There was a repayment in between then, I guess, for , Q And what was the -- what was that repayment made in 12 connection with? 13 A What was that? 14 MR. NEMON: Strike that. 15 Q Why was there a payment -- $500,000 repayment between 16 April 1, 2014 and May 19, 2014? A Q A Q Because I was owed the money. What property was that paid in connection with? I believe it was for East 78th Street. And that payment was not in connection with the John 21 Street property; correct? 22 A Correct. 23 Q And when you sent this asking for a confirmation, 24 and then the response from Mr. Sprei was, "It's not closing as 25 of now"; correct? 24 of 59

25 1 A 2 Q 3 A Y.DECKELBAUM-DIRECT/Nemon Correct. Did you have any other response to this ? Not that I know of Q Do you remember Mr. Miller ever objecting to this 5 ? 6 A Never. 7 Q Do you remember Mr. Miller ever saying to you that the 8 $1.97 million on the 45 John Street property is not owed? 9 A Never. 10 Q Did there ever come a time that you did receive any 11 repayment of the 45 John Street loan? 12 A Yes. At a certain point we were talking to the -- to John to Mr. Sprei, Mr. Miller, their attorneys about 14 initiating a lawsuit to recover the funds. And at the - we 15 had a -- sort of a meeting, and at the meeting they they 16 agreed to repay me a million dollars from the -- it was 17 supposed to be a sale of 45 John, a contract deposit, and from 18 the contract deposit I was supposed to -- that was supposed to 19 be released to them I was supposed to get $1 million, and I 20 would get the balance at the closing of title at the closing of 21 the sale. 22 And at the -- a few weeks later when they signed the 23 contract and the seller gave a deposit I got a call from their 24 attorney saying that they only have $500,000 to give me, and 25 but I was assured several times I would be repaid the balance 25 of 59

26 26 Y.DECKELBAUM-DIRECT/Nemon 1 at the closing of the sale, that there was plenty of funds and 2 I would be repaid in full. And I got the $500,000 and I never 3 got repaid on the rest. 4 And during that time we were -- during that whole time 5 we did not initiate the litigation that we wanted to based on 6 their representation that we were going to get the million 7 dollars, which we didn't get. 8 Is it your testimony that of the ,970,000 that you advanced with respect to 45 John Street you received $500,000? THE WITNESS: Correct. So the amount due you, according to 13 you, with respect to 45 John Street is 1,470,000? THE WITNESS: Correct. And in this lawsuit you're not seeking 16 any sums other than the 1,470,000? 17 THE WITNESS: Well, we'd like to get paid interest or other types of damages. Okay. What about the other sums that are reflected in Exhibit 4 in evidence? 21 THE WITNESS: That's not part of the -- of the 22 lawsuit against 45 John. 23 Have you initiated separate actions with respect to those sums or have those sums been repaid? THE WITNESS: Those sums have not been repaid, so 26 of 59

27 27 Y.DECKELBAUM-DIRECT/Nemon 1 there are several sums that are still owed to me which 2 which we may have to initiate litigation to recover. 3 BY MR. NEMON: 4 Q You said before that there was a meeting with the 5 attorneys. 6 A Correct. 7 Q Who are those attorneys? 8 A Yisroel Schwartz and Ann Hsiung. 9 Q Did Mr. Schwartz say who he represented at that 10 meeting? 11 A Yes. He said he represented 45 John and he 12 represented Mr. Sprei and Mr. Miller. 13 MR. NEMON: I'd ask that the court reporter to 14 mark this as Exhibit -- Plaintiff's Exhibit 5 for 15 identification. 16 (A document was marked Plaintiff's Exhibit 5 17 for identification.) 18 COURT OFFICER: Plaintiff's Exhibit 5 marked for 19 identification. 20 BY MR. NEMON: 21 Q Mr. Deckelbaum, do you recognize this document? 22 A Yes. This is a Chase Bank statement. 23 Q 24 A 25 Q From which month? September And you'll notice that there's been some redaction. D 27 of 59

28 Y.DECKELBAUM-DIRECT/Nemon 1 you know who did that redaction? 28 2 A I made the redactions. 3 MR. NEMON: And may I ask that this be moved into 4 evidence? 5 Okay, so this reflects the receipt of 6 $500,000? 7 THE WITNESS: Correct. 8 Okay. So Exhibit 5 is received in 9 evidence. 10 (Plaintiff's Exhibit 5 previously marked for 11 identification was received in evidence.) 12 COURT OFFICER: So marked, Your Honor. 13 BY MR. NEMON: 14 Q Exhibit 5 says that -- that there was a transaction on 15 September 22 for $500,000 received from Riverside Abstract, LLC. 16 Do you recognize that transaction? 17 A Yes. That was -- that was a repayment of the $500, from the from the down payment of 45 John Street. 19 Q Do you know who Riverside Abstract, LLC was? 20 A I believe they were the title company for the closing 21 of 45 John Street. 22 Q And closing of what transaction? 23 A The sale on the sale of 45 John Street. 24 Q Who were they selling it to? 25 A They were selling it to, I think the entity was 28 of 59

29 Y.DECKELBAUM-DIRECT/Nemon 1 HS John Street LLC Q And, other than this $500,000 payment, did you receive 3 any other payment from Sprie, Miller, 45 John Street or any 4 other person in repayment of the $1.97 million loan? 5 A No. 6 Q Did you ever receive any interest payments? 7 A No. 8 Q Did you -- Do you know whether the LLC is still 9 operating? 10 A I know that the -- the main asset of the entity was 11 sold in bankruptcy sale. 12 Q And were you paid any distribution out of that 13 bankruptcy sale? 14 A No. 15 Q All right. 16 Did you attempt to get any distribution out of that 17 bankruptcy sale? 18 A Yes. We made a claim in the bankruptcy sale. And, 19 based on a technicality, we weren't able to -- to collect at 20 the sale THE WITNESS: What was the technicality? I believe the Judge said that we it wasn't -- it was a different entity that was in bankruptcy -- that filed for bankruptcy and the Judge said that we were a creditor of a creditor, not a creditor of 29 of 59

30 PROCEEDINGS the estate that was bankrupt, so therefore we weren't technically a creditor of the bankruptcy estate. But he did not rule on the merits of the case, from what I understand. 5 Okay. 6 7 Are there any proceedings against any party other than Mr. Miller pending in this court? 8 MR. NEMON: There's the -- against 45 John Street 9 there's an outstanding motion for summary judgment MR. NEMON: And when was that motion made? That motion was made in February of 12 this year. And we were before Your Honor on May 4th and Your Honor heard oral argument on that motion for summary judgment against the entity and tabled the issue pending a discovery production from -- from Reliable Abstract to 45 John Street, which is now controlled by another 17 shareholder of 45 John Street but not Mr. Miller. And Your Honor is going to hear arguments on -- further arguments on that motion and the motion that is intended to be filed by 45 John Street and Mr. Dong, the other investor, on July 17th. 22 Okay. 23 MR. NEMON: I have no further questions of the 24 witness. 25 Okay. I have some other business to 30 of 59

31 31 Y.DECKELBAUM-CROSS/Fleischmann 1 conduct, so, Mr. Deckelbaum, I'd like you to just sit in 2 the jury box for a moment. We are going to be -- you're 3 going to be cross-examined by Mr. Fleischmann after I take 4 care of this other business. 5 And do not speak with your counsel while I'm 6 dealing with this other business. 7 (Record suspended.) 8 We will go back to the inquest now. 9 You can take the witness stand. 10 (Witness resumes witness stand.) 11 COURT OFFICER: Please watch your step. I remind 12 you you're still under oath. And please keep your voice 13 up. Thank you. 14 Mr. Fleischmann...? 15 MR. FLEISCHMANN: Thank you, Your Honor. 16 Please keep your voice up. 17 MR. FLEISCHMANN: Yes. 18 All right. 19 CROSS EXAMINATION 20 BY MR. FLEISCHMANN: 21 Q Good morning, Mr. Deckelbaum. My name is a Jeffrey 22 Fleischmann; I represent Mr. Miller in this action and I'll be 23 asking you some questions today. 24 Mr. Deckelbaum, you testified earlier that you made a 25 loan of $1.97 million in connection with a closing on 45 John 31 of 59

32 Y.DECKELBAUM-CROSS/Fleischmann 1 Street; is that accurate? 32 2 A Correct. 3 Q Can you tell us how this loan was requested? 4 A I can't hear you. What? 5 Q Can you tell us how this loan was requested? 6 A Then loan was requested by the principals of 45 John 7 Street, Mr. Sprei, Mr. Miller, stating that they were short of 8 funds for the closing and needed a loan. 9 Q And did you get a phonecall? How was it requested? 10 A Yes. We spoke on the phone. 11 Q Who did you speak to? 12 A I spoke to Mr. Sprei and Mr. Miller. 13 Q You spoke to Mr. Miller on the phone? 14 A Yes. 15 Q And what was the content of your conversation with 16 Mr. Miller? 17 A It was basically to confirm that the -- there was 18 that they needed -- they were short funds to close 45 John 19 Street and that if I loaned them the money they would repay it 20 very shortly. 21 Q And what were the terms of this loan? 22 A It was supposed to be repaid very shortly. That was 23 the terms. 24 Q Other than -- Was it an interest free loan? 25 A Yes. 32 of 59

33 Y.DECKELBAUM-CROSS/Fleischmann 33 1 Q So it's your testimony that at no point did you expect 2 to receive any interest in connection with the loan; is that 3 right? 4 A Could you say that again? 5 Q I said: So it is your testimony that at no point did 6 you expect to receive any interest in connection with this loan; 7 is that correct? 8 A At the time of the loan I was expecting to get repaid 9 in a day or two. So at that point we did not have a -- we did 10 not speak about interest. 11 Mr. Fleischmann, I have a great idea: 12 Why don't we take the lecturn, bring it very close to the 13 court reporter MR. FLEISCHMANN: Yes bring it close to the witness and 16 that way the witness can hear your questions. 17 MR. FLEISCHMANN: Sure. 18 Q Mr. Deckelbaum, did you submit a declaration to the 19 bankruptcy court in connection with the 45 John bankruptcy 20 matter? 21 A Yes MR. FLEISCHMANN: Can we mark this, Your Honor? Yes. That will be Defendant's Exhibit 24 A. 25 (A document marked Defendant's Exhibit A for 33 of 59

34 1 Y.DECKELBAUM-CROSS/Fleischmann identification.) identification. COURT OFFICER: Defendant's Exhibit A marked for 4 Q Mr. Deckelbaum, I'm going to ask you to turn to what's 5 Page 12 of this document. Do you see a signature block on that 6 page? 7 A Yes. 8 Q Is that your signature? 9 A Yes, it is. 10 Q And is it a true and accurate copy of the declaration 11 that you submitted to the bankruptcy court in connection with 12 the bankruptcy matter of 45 John? 13 A I suppose so. 14 Okay, we're going to admit this into 15 evidence. 16 MR. NEMON: Just to clarify, if he has questions of the witness he can ask them directly. use this for impeachment purposes but -- I mean, he can MR. NEMON: I'm sorry? I would submit that he can use this for impeachment purposes, but to submit this as an actual piece of evidence, you know, before I'm going to use it for such purposes 24 that the Court determines are relevant. So I'll consider 25 it for what it's worth. And it is a sworn statement of 34 of 59

35 1 Y.DECKELBAUM-CROSS/Fleischmann this witness MR. NEMON: I understand. I'm just pointing out that we have a live witness here that he can get original testimony from. Yes. And if you want him to ask questions and then impeach him with sworn statements that are contained in the affidavit we can do that, but this is a bench trial and we are trying to move this efficiently. You're right that that's the proper way to do it, but as a practical matter it's much more efficient and much more -- MR. NEMON: I understand. I just want to clarify the scope of what this is being admitted into evidence for. 13 It's a sworn statement by this 14 witness. So if he says anything that's on the witness stand that's in conflict with what's in the sworn statement, that's something that I'll consider. If Mr. Fleischmann doesn't ask questions that get him to the point of impeachment then Mr. Fleischmann's not doing a good job as an advocate. 20 MR. NEMON: Thank you (Defendant's Exhibit A previouisly marked for identification was received in evidence.) 23 COURT OFFICER: Defendant's Exhibit A marked in evidence, entered into evidence. MR. FLEISCHMANN: Thank you. 35 of 59

36 Y.DECKELBAUM-CROSS/Fleischmann 1 BY MR. FLEISCHMANN: 36 2 Q Mr. Deckelbaum, I'm going to ask you to take a look at 3 Paragraph Number 7 of this document. 4 Do you see there's a parenthesis at the end of this 5 paragraph and it says the 2 million figure apparently included 6 a return on investment of $30,000 that Reliable expected to 7 receive for the use of its funds? 8 A Yes. 9 Q Is that an accurate statement? 10 A Yes. 11 Q So did you expect to receive $30,000 for the use of 12 these funds? 13 A I expected that if the -- if the defendant would 14 repay would pay that -- that fee that I believe it would be 15 a reasonable fee for the use of the funds. 16 Q And you also testified earlier that you expected this 17 to be paid back within, I think you said a day or two; is that 18 accurate? 19 A That is accurate. 20 Q So you -- it's your testimony that a $30,000, quote, 21 fee is a reasonable amount of money to receive for a one- or 22 two-day loan; is that accurate? 23 MR. NEMON: Objection. Relevance. 24 Sustained. 25 What difference does it make? 36 of 59

37 Y.DECKELBAUM-CROSS/Fleischmann 37 1 MR. FLEISCHMANN: Well, if nothing else it's 2 impeachment. 3 I'm sorry? 4 MR. FLEISCHMANN: I said, if nothing else it's 5 impeachment. He said before that there was no interest, 6 and that's clearly not the case. 7 You're going to have to move even 8 closer than you are, because what you're saying is 9 basically inaudible. 10 MR. FLEISCHMANN: It's basically...? I'm sorry? 11 It's inaudible. 12 MR. FLEISCHMANN: 11 Inaudible. 11 I I m sorry. 13 What I said, Your Honor, was that if nothing 14 else it's impeachment, because the witness testified that 15 there was no interest and in fact this clearly is 16 interest. That's what I said. 17 Okay, let's move on. 18 MR. FLEISCHMANN: Okay. 19 Q What was the name of the entity that the funds were 20 wired to, the $1.97 million? 21 Okay, that's in the record. We have 22 an exhibit. 23 MR. FLEISCHMANN: Okay. 24 Q To refresh your recollection, it was -- Well, it was 25 Sullivan 90 Holdings, as you said earlier; correct? 37 of 59

38 1 A 2 Q Y.DECKELBAUM-CROSS/Fleischmann Correct. Okay What evidence do you have, if any, that Mr. Miller 4 actually received those funds? 5 A Well, I happen to know that Mr. Miller was the 6 managing member of that entity. 7 Q Do you have any documents that would evidence that 8 fact? 9 A Not with me, but... I don't have them with me, so 10 I -- I believe I could produce them, yes. 11 Q But you don't have them here today; right? 12 A I don't have them here. 13 MR. NEMON: Objection. Relevance. Asked and 14 answered. 15 It's asked and answered. Move on. 16 Q How much do you maintain is owed to you in this action? 17 What is the balance as of today? 18 A Well, the principal that's owed to me in this action 19 is 1,470,000 as the base. And on top of that, whatever I asked 20 for in the complaint. 21 Q Okay. 22 What did you ask for in the complaint? 23 A I don't recall or have the complaint in front of me, 24 but I believe there's interest, unjust enrichment, claims of 25 that nature, which I believe is totally reasonable. 38 of 59

39 39 Y.DECKELBAUM-CROSS/Fleischmann 1 Q I think you testified earlier, and correct me if I'm 2 wrong, that Sullivan 90 was a -- I think you said a clearing 3 account for the 45 John transaction. Is that what you said 4 before? 5 A That was -- that was the representation that was made 6 to me by the 45 John people. 7 Q Had you ever previously wired money to Sullivan MR. NEMON: Objection. 9 Q to the Sullivan 90 account? 10 MR. NEMON: Objection. Relevance. 11 No, that's overruled. 12 A What was the question again? 13 Q Had you ever previously wired funds to the Sullivan account? 15 A I believe so. 16 Q And for what purpose? 17 A I don't recall. 18 Q Was it more than once? 19 A Perhaps. 20 Q Was it in connection with other loans that were perhap 21 made to Mr. Sprei? 22 A No. I don't believe so. 23 Q What do you believe it was for? 24 A I can't say. I would have to look at the particular 25 transaction that you're asking me a question about. 39 of 59

40 40 Y.DECKELBAUM-CROSS/Fleischmann 1 Q Was it always -- was the previous transactions in 2 connection with 45 John Street or something else? 3 A Not related they were not related to 45 John. 4 Q So when you say that the account was a clearing accoun 5 for 45 John, that's really not technically accurate; right? 6 MR. NEMON: Objection. Misstates the testimony of 7 the witness. 8 No, it doesn't misstate the testimony 9 of the witness. 10 A The way the principal of 45 John Street represented it 11 to me was that that account was going to be the clearing 12 account for the closing for 45 John, since 45 John was a new 13 entity and didn't have its own account. 14 Q But it had been used for other things in the past, 15 aside from 45 John? 16 A Perhaps. 17 Q You testified earlier that the $500,000 was repaid; is 18 that accurate? 19 A I testified the $500,000 was repaid, correct. 20 Q And it was repaid for purposes of this -- the 21 transaction that is the subject of this lawsuit; correct? 22 A It was paid for the -- correct, the 1,970,000 wire 23 transfer. 24 MR. NEMON: Just as a point of clarity, there were 25 two $500,000 payments that he referred to in his testimony. 40 of 59

41 Y.DECKELBAUM-CROSS/Fleischmann 41 1 I just ask that counsel clarify which one he's referring 2 to. 3 Q Other than your independent belief that Mr. Miller was 4 a member of Sullivan 90, do you have any other proof that 5 Mr. Miller received the funds? 6 MR. NEMON: Asked and answered. 7 That's sustained. 8 Q Is Sullivan 90 a defendant in this lawsuit? 9 A I don't believe so. 10 Q Why not? 11 MR. NEMON: Objection. Calls for a legal - - calls 12 for attorney/client privilege and That's overruled. 14 MR. NEMON: I'm sorry? 15 MR. FLEISCHMANN: Overruled. 16 Overruled. 17 A I would have to discuss that with my attorney, what 18 the reason behind that was. 19 Okay, that's the answer, 20 Mr. Fleischmann. Move on. 21 MR. FLEISCHMANN: I have no further questions, 22 Your Honor. 23 MR. NEMON: Redirect? 24 Yes of 59

42 Y.DECKELBAUM-REDIRECT/Nemon 1 REDIRECT EXAMINATION 42 2 BY MR. NEMON: 3 Q Mr. Fleischmann before asked you about your declaratio 4 in the bankruptcy proceeding and pointed to -- an exhibit which 5 I believe was marked as Defendant's Exhibit A and asked you 6 about Paragraph 7. 7 In Paragraph 7 in parenthesis you said the 2--- you 8 said the 2 million figure apparently included a return on 9 investment of $30,000 that Reliable expected to receive for 10 the use of its funds. 11 Did you ever have a conversation with Mr. Miller in 12 which you discussed any return on investment on or about 13 March 7, 2014 when he solicited this loan? 14 A No, I did not. 15 Q And you never demanded a $30,000 repayment from 16 Mr. Miller; correct? 17 A Correct. 18 Q Were there prior discussions at which Mr. Miller or 19 Mr. Sprei or Miss Hsiung mentioned the figure $2 million? 20 A Yes. Initially the 45 John principals had mentioned 21 that they had a shortfall of $2 million at the closing and they 22 needed $2 million. And then they came back and said that they 23 only needed 1,970, Q And how much And the loan was for how much? 25 A And the loan was for 1,970,000 at the end. 42 of 59

43 SUMMATION/Nemon 1 Q And did you receive a check for $2 million from 2 Miss Hsiung? 3 A I received a check and was told not to deposit it. 4 Q And at any point did she tell you that the reason that 5 the check was written for $2 million was in order to pay you 6 interest? 7 A No. 8 Q And did you ask her why it was for $2 million? 9 A No. 10 Q And did anyone ever say that it was a return on 11 investment from -- from the 45 John, Miller, Sprie or Hsiung 12 camp? A No. 14 MR. NEMON: Thank you. No further questions. 15 Okay, you may step down (Witness excused.) COURT OFFICER: Thank you. Please watch your 18 step Does plaintiff have any further -- anything further? MR. NEMON: Yes. Your Honor, the plaintiff has proven clearly that there was a loan for $1.97 million on March 7, 2014 to an entity that was controlled by Mr. Miller and Mr. Sprei and that Mr. Sprei and Mr. Miller acknowledged receipt of that money, acknowledged the use of 43 of 59

44 SUMMATION/Neman that money for the 45 John property through s, through Mr. Sprei's contract with Mr. Miller which -- which was, I believe it was Exhibit 3, the which was Exhibit 4. Miss Hsiung, who is an attorney that apparently represented Mr. Sprei and represented the property for the closing sent a check for $2 million acknowledging that it was for 45 John Street. There was no repayment, there's been no evidence submitted from counsel that there was ever any other repayment over than the $500,000 which came about seven months later at the closing of 45 John Street in connection with the closing of 45 John Street. And I would submit to Your Honor that this is a -- this is a proceeding on the quantum of damages owed, this is not a proceeding on liability. I'm sure counsel's going to raise plenty of issues in his his response saying that there are issues as to the in 18 corporate identity of 45 of Sullivan 90, whether the 19 money was actually used for 45 John Street, whether there 20 was any liability taken on by Mr. Miller. None of that is relevant to the instant proceeding in which liability has already been determined, and the only question before the Court is the question of the quantum of damages. Now, he may raise issues as to Sprie's agency for Mr. Miller, even though that's not a proper issue for 44 of 59

45 1 2 3 SUMMATION/Neman this proceeding. I'll point out to Your Honor and I'll -- I can hand up the documents that Mr. Sprei testified in the bankruptcy proceeding and his 45 4 deposition I'm sorry, Mr. Miller testified in his deposition of the bankruptcy proceeding that Mr. Sprei was his authorized agent to -- to obtain financing for deals in -- to pay financing, loans, investments in 8 connection with the 45 John deal. He couldn't determine 9 10 whether those loans were personal to him, he couldn't determine whether those loans were designated for the 11 LLC. Mr. Miller, he disclaimed knowledge in the bankruptcy deposition and he said all of this was done by Mr. Sprei. Mr. Sprei was deposed in this case, Mr. Sprei was represented at that deposition by Mr. Pasternak, the individual -- the attorney who last week made a application for Mr. Miller seeking to adjourn this inquest, and at that deposition he explained, of course, Sullivan 90 is an account controlled by Mr. Miller. Sullivan 90 is an entity in which Mr. Miller is 21 the managing member. Sullivan 90's funds were used in connection with the purchase of 45 John Street based on my solicitation -- "my," meaning Mr. Sprei's solicitation 24 of Reliable Abstract. There cannot be a question as to 25 liability, but, even if there was that question, they're 45 of 59

46 1 SUMMATION/Nemon judicially estopped from asserting denial of -- of 46 2 authority of Mr. Sprei, denial that the Sullivan 90 was 3 an entity of Mr. Miller. And they cannot come here today and disclaim the amount of damages, because they've offered no evidence in mitigation thereof, they've offered no evidence that the money wasn't paid. And, therefore, I submit to Your Honor that the damages should be calculated as follows: On $1.97 million loan from March 7th until September 22nd of 2014 there were -- there should be interest calculated at the statutory rate of 9 percent 12 starting from the day after the loan. Because this was a loan that was a short term loan, as testified to by Mr.--- by Mr. Deckelbaum, the payments -- Mr. Deckelbaum made repeated demands for payments, those demands went un-responded to and Mr. Deckelbaum -- I'm sorry, Reliable 17 never received anything upon demand. Therefore, the breach was immediate; and, under the statute, the statutory interest runs from the date of breach. $500,000 was repaid on the 22nd of September of 2014, leaving a balance outstanding of a $1.47 million principal on which statutory interest has continued to accrue since then until the date that this Court eventually enters judgment in favor of Reliable Abstract. Therefore, that -- the calculation should be 1.47 million 46 of 59

47 SUMMATION/Fleischmann in principal plus the interest on the full amount from for the initial seven-month period, and then interest on the outstanding balance from the repayment of $500,000 till today. Thank you, Your Honor. 6 MR. FLEISCHMANN: Thank you, Your Honor. 7 counsel's right about one thing, and it's that 8 this is a hearing on the issue of damages. But in order to show damages it's not enough to say that, "Well, there's been a judgment against Mr. Miller, and, therefore, as a result we are entitled to seek whatever money we want from him because there has been a judgment 13 against him." They have to show that Mr. Miller actually received the funds. So what they've done here today is they've shown that there was a wire a $1.97 was sent to an entity 17 called Sullivan 90 Holdings. Sullivan 90 Holdings apparently would be the real party in interest. Mr. Miller is not the real party in interest. 20 Mr. Miller did not receive the funds. They've done nothing, they've shown nothing on the record -- and I find it curious that counsel felt the need to offer the Court deposition transcripts and other things that were not introduced by the witness, because the simple matter remains they have not shown that Mr. Miller received the 47 of 59