Jack Levy's Deposition (Part 3)

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IN THE CIRCUIT COURT OF 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

PROBATE DIVISION

CASE NO.502010CP004252XXXXSB

IN RE: ESTATE OF ALLAN HAYMES,

Deceased.

___________________________________/

ZYLO MARSHALL,

Petitioner,

vs.

LOIS M. HAYMES, as PersonalRepresentative of the Estate ofALLAN HAYMES, and CRAIG DONOFF,as Personal Representative of theEstate of ALLAN HAYMES,

Respondents.

___________________________________/

U.S. Legal - Hollywood 3440 Hollywood Boulevard, Suite 320, Hollywood, Florida January 31, 2014 12:30 p.m.

DEPOSITION OF JACK LEVY

Taken before Debra Petracca, Notary Public,in and for the State of Florida, at Large, pursuantto Notice of taking Deposition.

-- -- --

VOLUME II

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1

2 APPEARANCES

3 APPEARING TELEPHONICALLY ON BEHALF OF THE PETITIONER:

4 ZYLO MARSHALL, PRO SE 402 West Atlantic Avenue, Apt. 154,

5 Delray Beach, Florida 33444

6 ON BEHALF OF THE RESPONDENT:

7 SHENDELL & POLLOCK, P.L., By: MATTHEW A. TORNINCASA, ESQUIRE,

8 2700 North Military Trail, Boca Raton, Florida 33431

9

10 - - - - -

11 WITNESS CONT. DIRECT CROSS REDIRECT RECROSS

12 Jack Levy

13 (By Mr. Tornincasa) 103 303

14 (By Mr. Marshall) 265 324

15 - - - - -

16 RESPONDENT'S EXHIBITS FOR IDENTIFICATION: PAGE

17 EX. 4 - update subpoena duces tecum 109

18

19

20

21

22

23

24

25

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1 - - - - - - - - -

2 THEREUPON:

3 JACK LEVY

4 was called as a witness and having been first duly sworn was

5 examined, testified, and stated as follows:

6 DIRECT EXAMINATION

7 BY MR. TORNINCASA:

8 Q. Mr. Levy, my name is Matt Tornincasa.

9 We've spoken on the phone. It's nice to meet you

10 today. I represent Lois Haymes and Craig Donoff in

11 connection with this lawsuit that's been brought by

12 Zylo Marshall.

13 A. Can I ask you, who's Craig Donoff?

14 Q. We'll go over that. Today I really

15 need to ask questions. But you are -- actually, I

16 know that when you were deposed previously,

17 Mr. Pollock gave you some rules. They're really

18 not rules, guidelines, which can help to make sure

19 that we have an orderly process today.

20 A. Okay. I'll answer your questions. I

21 was just curious before we started who he was.

22 MR. MARSHALL: Can you guys up the

23 volume a little bit. I can't hear you.

24 THE WITNESS: Can you hear me now?

25 MR. MARSHALL: Thank you, yes.

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1 THE WITNESS: Do you know who Craig

2 Donoff is?


4 Q. Okay. Time out.

5 A. I can't ask him that?

6 Q. No. You cannot have a conversation

7 with Mr. Marshall.

8 A. Okay.

9 Q. We're going to proceed in an orderly

10 process. I believe the transcript from the last

11 one -- I really -- this goes a lot easier.

12 A. I thought it was informal.

13 Q. That's all right. A deposition is a

14 conversation. It's a conversation. It's my chance

15 to ask you questions. Your obligation is to

16 respond to my questions to the best of your

17 knowledge.

18 A. Right.

19 Q. As you can tell, we have a court

20 reporter who is taking down everything that's said.

21 For that purpose I will attempt not to interrupt

22 you. I will appreciate if you allow me to finish

23 my question before you begin to answer. That way

24 we get a clean record.

25 A. I understand.

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1 Q. Because everything is being written

2 down, I need to ask you to say yes or no instead of

3 uh-huh or uh-uh or nodding your head because those

4 don't translate well to the paper.

5 A. Yes.

6 Q. Do you understand?

7 If I ask you a question today and you

8 do not understand what I'm asking you, please let

9 me know and ask me to clarify my question;

10 otherwise, I will assume that you understood the

11 question that I asked and you're answering the

12 question that I asked you.

13 I'll try to make this as quick as

14 possible for you. I would like you to therefore

15 answer the question that I ask you, when I ask you

16 a question. And if you need to explain your answer

17 afterwards, I'm happy to hear explanation. But if

18 I provide you yes-or-no questions, it would be much

19 easier if you give me --

20 A. What are the rules? You said -- what

21 are the rules? You said you go by certain rules.

22 Q. These are guidelines.

23 A. Yeah, what are they?

24 Q. That's what we're going over right now,

25 sir.

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1 A. Okay.

2 Q. You are under oath, so your obligation

3 is -- under oath is to answer the truth, the whole

4 truth and nothing but the truth as we've indicated.

5 And it's really -- the purpose is to continue the

6 discussion that you began with Ken Pollock

7 previously. Okay.

8 Do you remember your last deposition

9 session, Mr. Levy?

10 A. It was on November 9th, according to

11 this paper, 2013.

12 Q. Okay. Were you actually --

13 A. I have a copy of it.

14 Q. Were you deposed on November 9th, 2013?

15 A. I think so, yeah. That's -- yes.

16 Q. Do you have an actual memory of being

17 deposed on December --

18 A. Yes.

19 Q. -- 9th, 2013?

20 Okay. Who was present at that

21 deposition on November 9th?

22 A. Zylo Marshall, myself, Diane --

23 beautiful -- this court stenographer and the other

24 side's lawyer. I don't remember who else. We were

25 all here.

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1 Q. And another lawyer was here as well?

2 A. The lawyer was asking me questions. I

3 don't remember his name.

4 Q. Okay. Mr. Levy, how do you know

5 whether or not your memories are accurate and

6 reliable?

7 A. To be honest with you, I'm 86, going to

8 be 87. I don't think anybody at 87 is 100 percent

9 accurate. I don't believe that. I think I know

10 the answer, but I may be --

11 Q. May be wrong?

12 A. At my age it can happen.

13 Q. Okay. That's fine. Have you been

14 diagnosed with any medical disorders which impact

15 your memory such as dementia or Alzheimer's?

16 A. No.

17 Q. Are you on any medication that impacts

18 your memory?

19 A. Not that I know of.

20 Q. Okay.

21 A. I was at one time, but it was -- it's

22 not that important. It was tried once and I

23 stopped it.

24 Q. Are you on any medications that have as

25 a listed side effect that they may impair your

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1 memory?

2 A. No.

3 Q. Okay. Have you done anything today to

4 prepare for today's deposition session?

5 A. Well, this morning I started looking up

6 the old deposition that I had, and I had a letter

7 that I wrote. I couldn't find the letter.

8 As a matter of fact, I asked my son to

9 try to help me with my printer to print it up for

10 me. The printer's broken, and I don't have it.

11 But I wanted to bring it with me.

12 And I understand you must have a copy

13 of this letter, when I stated most of the things I

14 remembered at the time, which was around three

15 years ago, four years ago. I wrote a letter. You

16 must have a copy of that letter.

17 Q. I'm not sure exactly which letter

18 you're talking about. I have some documents I want

19 to review with you today. If that letter's in

20 them, then we'll go over it.

21 A. Okay. Are you going to let me see

22 which one it is?

23 Q. No. We're going to proceed the way I

24 want to proceed today, Mr. Levy.

25 A. Okay. Whatever. I'm thinking maybe I

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1 will try to use this to refresh my memory.

2 Q. Now I see you've brought some

3 documents. May I see the documents that you

4 brought today?

5 A. This is the one that I got, the

6 summons, and this is the copy of what happened.

7 Q. Okay. You've handed me two documents.

8 This first document is labeled "Updated subpoena

9 duces tecum for deposition." And it's a subpoena

10 duces tecum to request you to appear today. It was

11 issued on January 17th.

12 I'm actually -- do you mind if I have

13 the court reporter mark this as Exhibit 4?

14 A. Okay.

15 (Whereupon, the document was marked

16 Defendants' Exhibit No. 4 for identification

17 by the Court Reporter.)


19 Q. Mr. Levy, this updated subpoena duces

20 tecum for deposition that's been marked as Exhibit

21 4, you received this on January 27th; is that

22 correct?

23 A. Couple of days ago, yeah.

24 Q. Okay. Now, on the last page of this,

25 there's a Schedule A that asks you to bring

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1 documents, and there are 12 categories of documents

2 that are identified. Besides the two subpoenas

3 duces tecum that you brought, I don't see any other

4 documents with you today. Did you not bring any of

5 the documents?

6 A. I didn't bring anything because there's

7 no record of anything that's there that I know

8 of --

9 Q. Okay. We're going to go through --

10 A. -- so I can't bring any documents.

11 Q. -- a couple of these categories. I

12 just want to make sure it's correct.

13 So all communications exchanged between

14 you and Zylo Marshall regarding Lois Haymes, Allan

15 Haymes, Craig Donoff, the estate of Allan Haymes or

16 the estate or trust agreement of Allan Haymes dated

17 or created during the period of January 1, 2003, to

18 the present, you do not have any documents

19 responsive to that request?

20 A. No. As a matter of fact, some people I

21 don't even know who they are.

22 Q. Okay. Any communications exchanged

23 between you and Allan Haymes regarding Zylo, Lois,

24 Craig, the estate or Allan's trust dated or created

25 during the period of January 1st, '03, to the

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1 present --

2 A. All verbal.

3 Q. Only verbal?

4 A. No, documentation.

5 Q. No documentation; okay.

6 All communications between you and Lois

7 Haymes regarding Zylo, Allan, Craig, the estate or

8 the trust from 1/1/03 to the present.

9 A. No documents.

10 Q. Okay. Any documents you received from

11 Allan Haymes? You have no documents? You never

12 received any documents from Allan Haymes?

13 A. I had -- I have received from time over

14 the years.

15 Q. Okay.

16 A. But I didn't think that that was -- you

17 mean like I was in a deal with him and we --

18 Q. Okay. This is only for the period from

19 January 1st, 2003, through the present.

20 A. No.

21 Q. They were prior to January 1st, 2003?

22 A. No documents. 2003, that's 11 years

23 ago.

24 Q. Yeah.

25 A. I don't have the documents, but -- I

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1 don't have them.

2 Q. Okay. That's fine. Request No. 5 was

3 all documents in your possession which relate to

4 Allan Haymes' testamentary intents.

5 Do you understand what his testamentary

6 intent is? How he would want his wealth and his

7 belongings to be distributed after he dies. Do you

8 have any documents --

9 A. In writing or verbal, yes.

10 Q. Verbal, yes, okay.

11 Any emails that you've sent to Zylo

12 Marshall from January 1st, 2003, up to today?

13 A. No.

14 Q. So is it fair to say that you never

15 sent an email to Zylo Marshall since January 1st,

16 2003?

17 A. Honestly, I don't know. I really can't

18 say I did or I didn't because I'm not sure. I have

19 received an email from him, but it's very hazy when

20 it happened or whatever. I know there was an email

21 from him. I forgot what it was about even.

22 Q. Was this an email you received

23 recently --

24 A. No.

25 Q. -- or in the past?

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1 A. In the past.

2 Q. Was it an email you received from him

3 while Allan Haymes was still alive or after Allan

4 Haymes died?

5 A. Don't ask me about it. It's a vague

6 thing because I just can't -- can't respond to

7 that. I don't know, so . . .

8 Q. I don't know and I don't remember are

9 completely acceptable answers.

10 A. I don't remember.

11 Q. That's fine. I'm here today to find

12 out what you know and what you remember. And if

13 you don't know or remember, that's fine.

14 A. No. That's the easiest.

15 Q. So any documents in your possession

16 relating to Allan Haymes' purported lack of

17 testamentary capacity to make a will on

18 January 30th, 2009. Do you have any documents that

19 relate to Allan Haymes' capacity?

20 A. I don't have them, but I'm sure Lois

21 has. I don't.

22 Q. Okay. Number 9, all documents in your

23 possession relating to Allan Haymes' reported

24 suffering from undue influence by Lois Haymes. Do

25 you have any documents that support that?

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1 A. No. I don't have documents. Just

2 memories of what happened. I know what happened,

3 but I can't document them because I didn't have a

4 reporter with me.

5 Q. All documents relating to Lois Haymes'

6 isolation of Allan Haymes. Do you have any

7 documents?

8 A. No documents, no. I have no documents.

9 Q. Remember, she's trying to take down

10 everything we say.

11 A. The answer is no.

12 Q. That's fine. I just need you to let me

13 get the entire question out --

14 A. I'm sorry.

15 Q. -- that way she can get it on the

16 record.

17 A. I'm sorry. I apologize.

18 Q. I understand that you want to get

19 through this and you want to get it done quickly,

20 but for the sake of having a clean record, I need

21 to --

22 A. I understand. I make mistakes.

23 Q. But even while I'm saying this to you,

24 you have interrupted me again twice now. So, while

25 you understand, you're not doing it. And it will

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1 make it much easier for all of us if you please do

2 it, sir.

3 A. I will try.

4 Q. Thank you. There were two last

5 categories. Category No. 11, all documents that

6 relate to Lois Haymes threatening you, as described

7 in your transcript of your telephonic interview or

8 deposition with Mr. Marshall.

9 Do you have any documents regarding

10 that threat?

11 A. No.

12 Q. Okay. And then a letter, Exhibit A,

13 that you referenced in your transcript that was not

14 attached. Do you have a copy of that letter?

15 A. No. I would like a copy of it.

16 Q. Okay. All right. There was another

17 document that you also handed me. This document is

18 your original subpoena duces tecum for deposition.

19 I show this was served on you on November 9th,

20 2013. And I'm just going to return that to you.

21 So just for the sake of having a clean

22 record, with the exception of Exhibit 4 and the

23 prior subpoena for deposition, have you brought any

24 other documents with you today?

25 A. No.

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1 Q. Thank you. Besides reviewing the

2 documents that you have brought with you today,

3 have you done anything to prepare for today's

4 deposition?

5 A. Other than this, no.

6 Q. Have you spoken to Zylo Marshall in

7 preparation to today's deposition?

8 A. No.

9 Q. When was the last time you spoke to

10 Zylo Marshall before this deposition began?

11 A. I can't even remember.

12 Q. You don't remember?

13 A. No.

14 Q. Did you speak with Zylo today?

15 A. No.

16 Q. Did you speak to him yesterday?

17 A. No.

18 Q. Did you speak to him in the last week?

19 A. I'm not going to answer. I don't know.

20 I don't remember when I spoke to him.

21 Q. Okay. In the last three months, so

22 since about Thanksgiving, do you remember speaking

23 to Zylo?

24 A. I don't remember. I don't remember

25 when I spoke to him, but I did speak to him, but I

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1 don't remember when.

2 Q. What's the last conversation that you

3 remember having with Zylo Marshall?


5 Q. I want you to listen to my question

6 very carefully, Mr. Levy. I'm trying not to

7 frustrate you.

8 A. I'm trying to understand why -- what

9 you're getting at. You want me to remember the

10 conversations I had with Zylo. I don't remember

11 dates sometimes. I don't remember when it

12 happened.

13 Just, I know that I spoke to him and I

14 also have had emails from him. Once he sent me --

15 but I can't -- it's too vague to me. So I can't

16 say this is what happened and that's what happened.

17 I can't do that.

18 Q. Like I told you --

19 A. My memory is not the way it should be.

20 Q. Okay. I'm only looking for what you do

21 clearly remember.

22 A. Okay. So the answer's, no, I don't

23 remember.

24 Q. Has Mr. Marshall told you what he

25 intends to ask you today?

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1 A. No.

2 Q. Has Mr. Marshall asked you to testify

3 to anything today?

4 A. No.

5 Q. Okay. Have you had any conversation

6 with me about your testimony?

7 A. Not that I remember.

8 Q. You've already discussed that your

9 memory is poor, Mr. Levy, and I'm not trying to

10 harp on this.

11 A. No. I'm saying it's not 100 percent.

12 Q. Okay. Do you remember some things

13 better that others?

14 A. Everybody does, yes.

15 Q. Do you remember things that happened

16 recently better than things that happened in the

17 past, or do you find some people remember things

18 that happened last year better than they remember

19 what happened yesterday?

20 A. Sometimes I remember things that

21 happened 80 years ago to the 9th degree, and

22 sometimes I forget -- if you give me a phone number

23 today, by the time you end with the last number, I

24 already forgot the phone number. But that's -- I

25 chalk that up to old age.

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1 Q. Okay. Do you believe that with your

2 current memory situation that you have the capacity

3 to make a will at this time?

4 A. A will?

5 Q. Yes, sir.

6 A. Yes.

7 Q. Have you seen a transcript of the first

8 part of your deposition?

9 A. This part here, yes.

10 Q. That's not a transcript of your

11 deposition, sir.

12 A. This isn't a transcript?

13 Q. That's a transcript of a conversation

14 that you had with Mr. Marshall. I'm talking

15 about --

16 A. It was here. This was taken here.

17 Q. Well, sir, what's attached to that

18 document is not a transcript of the deposition

19 because there are no questions from Ken Pollock.

20 A. I don't know. I have no idea. I don't

21 remember seeing it. How would I get it? I'd have

22 to order it and pay for it?

23 Q. We'll have to go off the record to have

24 a discussion of that.

25 A. Huh?

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1 Q. We can go off the record and talk about

2 the process for you to review your transcripts

3 later.

4 Do you remember why your prior

5 deposition session stopped?

6 A. What was that?

7 Q. Do you remember why the prior

8 deposition session stopped?

9 A. Yes.

10 Q. Okay. Why was that?

11 A. Brian got a seizure at the time and it

12 upset me a lot and I couldn't go on. I just

13 couldn't go on. I mean, I just felt that I set him

14 back with a seizure, and I wouldn't want to do

15 that, and I couldn't continue it. This way he's in

16 California now, so . . .

17 Q. Now, when we stopped because

18 Mr. Marshall was not well, at that time did we have

19 an agreement that we would restart this deposition

20 and --

21 A. Yes.

22 Q. -- we would resume it again?

23 Do you recall that my office contacted

24 you to resume this deposition and that you refused

25 to reappear?

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1 A. I couldn't.

2 Q. You couldn't?

3 A. I was sick. I told the girl I'm sick.

4 I had -- two months I was in the house with

5 bronchitis. I mean, I just got -- I told her I

6 couldn't go.

7 Q. Okay. Do you remember speaking to me

8 at that time about scheduling a resumption of your

9 deposition?

10 A. I tried to cooperate. I was not

11 feeling well. And even today it was up in the air,

12 you know, but I said I'll try to make it, because

13 it depends on how I feel.

14 Some days I can't get out of bed. Some

15 days I can. Today was a very, very good day for me

16 and I'm ready to go and I'm fine.

17 Q. Good. I'm glad today's a good day.

18 A. But when I couldn't do it, there was no

19 ulterior motive. I had no other reason. I just

20 couldn't do it.

21 Q. Are you aware that we obtained a court

22 order to compel your attendance at this deposition?

23 A. Do you mean this?

24 Q. Separate from that document.

25 MR. TORNINCASA: Let the record reflect

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1 he's pointing to Exhibit 4.

2 THE WITNESS: I don't remember. When

3 did you send the court order? I mean, I told

4 them I couldn't make it, right? After --

5 see, I'm a little confused.

6 They told me they wanted what you call

7 it, a deposition or subpoena, or whatever you

8 call this thing. And, I said at that time I

9 couldn't make it. I was sick. I was -- just

10 couldn't handle it.


12 Q. Okay. Mr. Levy, I remember calling you

13 because I called you personally to try to set that

14 deposition. I don't remember you ever telling me

15 that you had bronchitis. I do remember you telling

16 me that you didn't remember anything and that it

17 didn't make any sense for you to waste your time

18 because you don't remember anything.

19 A. Well, you want an answer to that?

20 Q. I would, please.

21 A. All right. The time that you -- I have

22 physical problems. One of them is my kidneys

23 are -- the last stages of the kidneys. And when

24 I'm in bed like, they even made a fistula for me

25 ready for -- I have it in my arm now -- ready for

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1 dialysis, but -- and I was, you know, my mind

2 was -- I could not -- I couldn't -- I couldn't

3 focus on anything at the time. I was so distraught

4 by all the things that were happening since then.

5 Since then, my kidney function has

6 improved. I don't know how it happened, but I can

7 only bless that it has happened, and I'm much more

8 alert now than I was then. So it was a physical

9 thing, but not a mental thing. It was mental, but

10 because of the situation I was in.

11 I had to consider should I take

12 dialysis. You know, it was the end of my life,

13 really. So there were much more important things

14 that I was considering, and I just couldn't handle

15 it.

16 Q. Okay. Turning to your prior deposition

17 testimony --

18 A. Can I finish?

19 Q. Did you have more to say?

20 A. Yes.

21 Q. Okay.

22 A. As far as the bronchitis goes, I have

23 doctor's records or whatever you want to do. I

24 went to a doctor for it. I tried everything. I

25 layed in bed for almost two months. So I could not

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1 come here. As a matter of fact, I wouldn't be near

2 anybody. I didn't want to spread germs.

3 Q. Okay.

4 A. That's my main reason. Now I feel I'm

5 more alert, you know, and I feel good.

6 Q. Okay. May I ask you another question

7 now?

8 A. Yes.

9 Q. Okay. Do you remember, in your prior

10 testimony in deposition, where you stated that you

11 recommended to Allan Haymes that Lois come to

12 Florida to help care for him?

13 A. Yes, I did.

14 Q. I want to speak to you generally about

15 your knowledge, awareness and communication with

16 Allan Haymes regarding his estate plan. I want to

17 start by asking you a fairly general question just

18 to get a feel for what you know, and then we'll

19 turn to more specifics.

20 And like I said, "I don't know" or "I

21 don't remember" is an acceptable answer to me. I

22 really just want to get a feel for what you do know

23 and what you remember.

24 Do you understand?

25 A. Will you allow me to tell you what I --

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1 finish the whole story instead of piece by piece?

2 Q. I'm going to ask you to answer my

3 questions.

4 A. Yes or no; you can't -- you can't

5 answer yes or no when you have an emotional

6 relationship with a man for 60 years who died

7 literally in your arms.

8 Q. If you feel --

9 A. It's very hard to -- yes or no doesn't

10 cut it.

11 Q. Okay. For many of these questions --

12 A. That's why I'm asking -- that's why I'm

13 asking, I want to be able to elaborate on the

14 answer.

15 Q. I'll make it simple for you. If it's a

16 yes-or-no question, I'll ask for yes or no. And if

17 you believe you need to explain that answer, you

18 can explain it after you give me the yes or no.

19 A. Okay. That's fine.

20 Q. Have you had conversations with Allan

21 Haymes regarding his plans for his estate?

22 A. Yes.

23 Q. Okay. When were those conversations?

24 A. I don't remember the date, but I do

25 remember. Exact dates I don't remember. I can

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1 tell you that he was -- and while he was in the

2 nursing home, I had conversations with him about

3 it.

4 Q. What was the name of the nursing home?

5 A. There were two of them. I don't

6 remember -- I don't remember their names. Casa

7 something or other was the first one. They threw

8 him out of there. And then he went to another one.

9 And I don't remember -- the first

10 nursing home he was at I think -- I think it was

11 when we spoke, because I don't remember exactly,

12 but we did have a talk about, because what I saw

13 coming down the pike was not what Al expected to

14 happen.

15 Q. Okay. And we'll get into that. Thank

16 you.

17 So you say you remember having two

18 conversations with him, more than two?

19 A. More than two.

20 Q. How many?


22 Q. Ten? Twenty? A hundred?

23 A. I can't -- I can't tell -- I can't

24 answer that. I can't record how many conversations

25 I had with the man. I don't count them. I don't

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1 have a record of it.

2 Q. This is just about his estate planning.

3 A. Let me state this here. I used to

4 visit him, while he was in the nursing home, almost

5 every week, maybe every two weeks. And at that

6 time, we would talk. Sometimes we'd talk about

7 that and sometimes we'd talk about something else.

8 Except, I mean, I don't have a diary of what

9 happened, when what happened.

10 Q. And that's fine. At least --

11 A. I know that the time of -- it started

12 after he was -- when he was in the nursing home was

13 when I first really approached him to do something;

14 before he couldn't, the first nursing home.

15 Q. I appreciate that you're trying to get

16 a full story out to me. But, like I said, I'm

17 trying to ask you fairly tight and discrete

18 questions --

19 A. I can't remember.

20 Q. -- so I'm going to move to strike that

21 response as nonresponsive.

22 A. Why?

23 Q. That's between me and the Judge.

24 A. Didn't you say --

25 Q. I don't believe that's --

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1 A. Didn't you say you would let me explain

2 it?

3 Q. Yes. And I will. But like I said --

4 MR. MARSHALL: I'm going to just object

5 to that because, you know, he makes a

6 statement. And I feel that, you know,

7 striking that is not getting the opportunity

8 to speak as to what he deems is appropriate

9 without giving a two-hour story on every

10 answer.

11 MR. TORNINCASA: Mr. Marshall, I'll

12 thank you to not make speaking objections.

13 They're not appropriate. They're not allowed

14 by the rules.

15 I'm going to make it very simple for

16 both of you. I have --

17 MR. MARSHALL: I don't know how that's

18 inappropriate when, you know --

19 MR. TORNINCASA: Mr. Marshall, it is

20 not your turn to speak.

21 MR. MARSHALL: Okay.

22 THE WITNESS: Okay. Fine. I disagree

23 with what you want to do. I think it's

24 wrong.


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1 Q. That's fine.

2 A. And I asked you, will I be able to

3 elaborate, and you said yes.

4 Q. If you tell me that you have an answer

5 that you think you need to elaborate on, that's

6 fine, but --

7 A. I did. I did.

8 Q. No, sir.

9 A. I told you I spoke to him about his

10 estate.

11 Q. Sir, we are not having this kind of

12 conversation today. The process for that --

13 A. Why strike something I just told you

14 happened and I don't have the specific time and

15 dates that it happened? Why strike it all out?

16 Q. Because all I needed was the answer

17 that you don't have the specific time or date. All

18 I need --

19 A. That's not true.

20 Q. -- is the answer to my question, sir.

21 And I will ask you to confine your responses to

22 answering my questions. I will try to give you the

23 opportunity to explain an answer after you've

24 answered the question. But we can't -- we will be

25 here for days --

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1 A. I don't care.

2 Q. -- if every question I ask you turns

3 into --

4 A. It doesn't bother me. I could be here

5 for days. I mean, I just want the record right. I

6 made an attempt to give you a frame of reference by

7 knowing when I spoke to him was when he was first

8 in the nursing home. I don't what exact dates of

9 that, but I know that's a frame of reference, which

10 I was sure of and you're striking that.

11 Q. Well, because that was not where you

12 stopped your answer. You went far beyond that,

13 sir.

14 MR. MARSHALL: Jack, I think it's

15 appropriate, if he asks you a question,

16 either a yes or a no, and more questions will

17 come beyond that. But I think I agree with

18 him, a yes-or-no answer will be appropriate

19 in answering his questions.

20 THE WITNESS: I'm trying.

21 MR. MARSHALL: -- to move along.

22 THE WITNESS: I'm trying, Zylo.


24 Q. You've testified that you do remember

25 having conversations with Allan Haymes regarding

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1 his estate plan?

2 A. Yes, I did.

3 Q. My next question to you was: When were

4 these conversations? You have indicated that you

5 remember having at least one, possibly more,

6 conversations with Allan when you were visiting him

7 in his nursing home?

8 A. Not possibly.

9 Q. Definitely?

10 A. Definitely.

11 Q. Okay. My next question to you is: As

12 near as you can estimate, how many more

13 conversations?

14 A. I would say ten. I'll put a number, an

15 estimate of ten.

16 Q. Okay. Thank you. For any of those

17 conversations, was there anyone present besides you

18 and Allan?

19 A. Yes.

20 Q. Who else was present?

21 A. Florence Rand. Florence, the lady, my

22 mate.

23 Q. How do I spell her last name?

24 A. R-A-N-D.

25 Q. And Florence is your wife?

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1 A. She's not my wife. A common law.

2 We've lived together for many years. I call her my

3 wife. It's easier.

4 Q. Besides Florence, was anyone else

5 present for these roughly ten conversations?

6 A. No, no. Not really. I don't think so.

7 Q. Was Lois present for any of these

8 conversations?

9 A. I honestly don't remember whether she

10 was or wasn't. But I'm sure -- but -- and I'll

11 elaborate. Okay?

12 Q. That's really all I need to know is

13 that you don't remember.

14 A. Okay. Then I'm not going to elaborate.

15 I don't know.

16 Q. For this roughly ten conversations, was

17 Florence present for all of them?

18 A. No.

19 Q. Or just some of them?

20 A. Some of them, one or two.

21 Q. One or two. Would it be fair to say

22 that most of these conversations then were between

23 just you and just Allan?

24 A. Yes.

25 Q. In these conversations, do you have

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1 specific recollections of what Allan Haymes would

2 say?

3 A. Yes.

4 Q. Okay. What from these conversations do

5 you specifically recall Allan Haymes saying?

6 A. Well, it was a conversation between two

7 people. So you want me to just say what Allan

8 Haymes said and that's what I asked him, or what I

9 said or just one person's --

10 Q. Let's just start with what he said and

11 then I will ask you for follow-ups if I think I

12 need them.

13 A. In response to the question I asked

14 him --

15 Q. Okay.

16 A. -- or he said that, don't worry about

17 Brian; he's going to be well taken care of. I

18 treat him like his mother. His mother was dying.

19 You know that. I'll treat him just like his

20 mother. And he'll be well taken care of and not to

21 worry. Don't worry, he'll be well taken care of.

22 So that's one of the remarks of a

23 conversation that he had.

24 Q. Okay. For that remark, do you remember

25 roughly when that was?

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1 A. The time that he was in the first

2 nursing home, when he first came into the nursing

3 home.

4 Q. At that point in time, was Carol still

5 alive?

6 A. No.

7 Q. At that point in time, was he in the

8 care of Lois?

9 A. In the care of Lois -- at that time,

10 I'm not sure.

11 Q. But it was definitely --

12 A. When you say "at that time," you've got

13 to understand, I had a lot of conversations with

14 him. What I told you may have happened before she

15 was in the picture. It may have happened after she

16 was in the picture. But I believe it was after,

17 but I'm not sure.

18 Q. Okay. Besides the one remark that

19 you've relayed to me already that you don't have to

20 worry, I will treat Zylo as I would have treated

21 Denise --

22 A. Right.

23 Q. -- do you remember any other specific

24 remarks?

25 A. Yes.

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1 Q. What was the next remark that you

2 remember?

3 A. The next remark I remember was --

4 again, this is over a span of maybe five years.

5 When they happened, how -- what exactly

6 specifically time and dates, they're not -- I know

7 one thing happened after the other. But the

8 time -- at the time what I saw happening --

9 Q. Well --

10 A. Well, I'm just trying to tell you --

11 Q. -- all I need you to tell me is what

12 you remember what was said.

13 A. Well, I was telling you what I

14 remember.

15 Q. What I need, what was said.

16 A. Well, I'm going to tell you what I

17 remember --

18 Q. No, no, sir. My question is --

19 A. -- what was said.

20 Q. Okay. Then please say that, because

21 you were going down a different path. And I'm

22 trying to avoid --

23 A. Okay. What I said was the path, what I

24 see happening is that Lois -- I found out -- I saw

25 what kind of a person she was; very, very

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1 vindictive and whatever. And I said to him, I

2 don't --

3 Q. I'm going to interrupt you.

4 A. I'm telling you what I said.

5 Q. I'm going to interrupt you here because

6 what I need to know is what Allan said.

7 A. You were asking me what I said.

8 Q. No. I asked you for what Allan said.

9 A. Only what Allan said?

10 Q. Yes.

11 A. You're asking for a half conversation.

12 You're asking for just --

13 Q. I can come back and ask for the other

14 part. But what I'm --

15 A. Well, I'm --

16 Q. Sir, this is not your --

17 A. I understand, but I want to give you a

18 full picture of it. You're giving me half the

19 conversation. It's ridiculous.

20 Q. That's fine. I'm moving to strike that

21 as nonresponsive.

22 A. Okay. It's nonresponsive.

23 Q. And I'm now asking you to answer my

24 question. What do you remember Allan Haymes saying

25 to you, please?

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1 A. I told you that part. And more than

2 once he said to me, don't worry, Jack, please.

3 She'll do the right thing. She'll be good. She'll

4 take care of everything, and you'll see. Brian

5 will be treated fairly. More than once he said

6 that. And you don't know what I said. Okay.

7 Q. I don't need to know that, sir.

8 Is there anything also that you

9 remember Allan Haymes saying?

10 A. Well, I'm finding it difficult. Let me

11 explain why. I'm sorry.

12 Q. Sir, I don't --

13 A. He spoke in response to what I said to

14 him.

15 MR. MARSHALL: Jack.

16 THE WITNESS: What?

17 MR. MARSHALL: What he asked you was

18 specifically what he said. Okay.

19 THE WITNESS: But it's ridiculous.

20 It's a conversation two people have, all

21 right. So you hear only one-half of the

22 conversation and that's all you know. You

23 don't know the other. You don't know what he

24 said in response to what I said to him.

25 MR. TORNINCASA: We're going to go off

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1 the record for a moment.

2 (Discussion off the record.)

3 MR. TORNINCASA: We had a discussion

4 off the record. I explained to you why I

5 need you to please answer just the questions

6 I am asking you.

7 Once again, I'm going to please direct

8 you to please answer the questions that I ask

9 you without editorializing, Mr. Levy. Thank

10 you.


12 Q. Are there any other specific

13 conversations with Allan Haymes that you had

14 regarding his testamentary intent where you

15 remember what Allan Haymes has said?

16 A. Oh, sure. How are you, Jack? How's

17 everything going? How's the family? Everything

18 good? Okay, you want to go out for dinner? Yeah.

19 Yeah, I'd like to go out for dinner.

20 Q. I don't believe that any part of that

21 conversation has anything to do with Allan Haymes'

22 testamentary intent. I'm going to move to strike

23 that.

24 A. But you asked me what he said.

25 Q. Regarding his testamentary intent, sir.

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1 Instead of --

2 A. He wasn't testifying when we had a

3 conversation.

4 Q. Mr. Levy, instead of trying to think of

5 ways to disrupt my questioning, I'm going to ask

6 you to please simply respond to the question which

7 is asked of you.

8 The prior question, which I can have

9 the court reporter read back, asks for

10 conversations regarding Allan's testamentary intent

11 that you remember. You've indicated that there

12 were two. I'm asking you if there are any others

13 besides those two?

14 A. I said there could have been ten. You

15 asked me for a number. At least --

16 Q. You said there's at least ten. You

17 have recalled two specific instances. Are there

18 any other specific instances where you discussed

19 Allan Haymes' testamentary intent that you

20 remember?

21 A. Yes.

22 Q. Please tell me the next instance where

23 you discussed Allan Haymes' testamentary intent.

24 A. What does "testamentary intent" mean?

25 I don't understand that exactly.

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1 Q. We discussed this when we were going

2 over the subpoena, but I'll refresh your memory.

3 This is what Allan wants to happen with his

4 property when he dies.

5 A. Right. Only that.

6 Q. That's it?

7 A. That's the only conversation. Okay.

8 Q. That's what testamentary intent means.

9 Do you understand my question?

10 A. Yeah, only with his estate. It has

11 nothing to do with anything else. So asking me my

12 family, how's everything, that's not conversation.

13 Q. That's not part of it, correct.

14 A. Okay. Okay, now.

15 Q. Were there any other conversations

16 regarding Allan Haymes' testamentary intent that

17 you specifically remember?

18 A. I could say that I had enough

19 conversations about his will that had to do with

20 Brian and had to do with my belief that Lois is not

21 going -- is not going to -- so -- and he answered

22 to me, he said, she'll be -- she'll be doing the

23 right thing. Don't worry about it. And he'll be

24 well taken care of. On more than one occasion,

25 words to that effect we had.

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1 And as he got older, I kept -- to a

2 point where one day he was just too -- too fragile

3 to bring it up and I stopped doing it because, you

4 know, it was to -- it hurt him.

5 Q. Okay. I think again you've gone far

6 beyond the scope of my question. I'm going to move

7 to strike, but we're just going to move one at this

8 point.

9 Do you know --

10 A. Well, you asked me about conversations

11 I had with him.

12 Q. Sir, that's it. Move to strike. We

13 don't get to debate it because that's for a judge

14 later.

15 A. Okay.

16 Q. Do you know when Allan's current will,

17 the one that's the subject of this lawsuit, was

18 signed?

19 A. No.

20 Q. Have you ever seen --

21 A. No.

22 Q. -- that will? Okay.

23 Do you know when the trust that is

24 referenced in that will was signed?

25 A. No, I don't.

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1 Q. Have you ever seen that trust?

2 A. I don't remember any of that.

3 Q. Okay. Do you know if this current will

4 and this current trust were signed before or after

5 the conversations that you had with Allan?

6 A. You are asking me -- you want my

7 answer. It's not a yes or a no, is it?

8 Q. I don't understand how that's anything

9 other than a yes-or-no question.

10 A. Then repeat it.

11 MR. TORNINCASA: Can you read the

12 question back?

13 MR. MARSHALL: That mischaracterizes

14 prior testimony.

15 MR. TORNINCASA: Mr. Marshall, I'll

16 thank you to not make speaking objections.

17 MR. MARSHALL: Why can't I do that?

18 I'm not an attorney. You know that. I know

19 that. And when I answer -- when you ask a

20 question that I feel is not appropriate or I

21 feel, you know, I don't think it's fair, I'm

22 not going to be a pain in the ass and do that

23 every single time.

24 MR. TORNINCASA: We're going to take

25 this off the record so I don't have to pay

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1 for this colloquy in the transcript.


3 MR. TORNINCASA: Back on the record.

4 The court reporter is going to read back my

5 last question. I will ask you to please

6 answer that question.

7 THE WITNESS: Okay. Go ahead.

8 (Whereupon, the Court Reporter read

9 back the question.)

10 THE WITNESS: I can't answer yes or no

11 because I don't know.


13 Q. That's fine. Like I said, I don't know

14 is a perfectly acceptable answer, Mr. Levy.

15 A. I don't know.

16 Q. Okay. You don't know?

17 A. I don't know when she did it.

18 Q. I am going to move to strike that.

19 A. Okay.

20 Q. Mr. Levy, my next question: The will

21 was signed January 30, 2009?

22 A. Yeah. The will -- that was the last

23 will.

24 Q. The current will was signed on

25 January 2009?

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1 A. Yes.

2 Q. Isn't it true that you never saw this

3 will?

4 A. Yeah. In that cause.

5 Q. Were you present when the will was

6 signed on January 30th, 2009?

7 A. I never saw the will.

8 Q. My question to you, sir, were you there

9 when the will was signed --

10 A. To my recollection --

11 Q. -- on January 30, 2009?

12 A. To my recollection, no.

13 Q. Did you meet with Allan Haymes on

14 January 30th, 2009?


16 Q. Did you speak to Allan Haymes on

17 January 30th, 2009?


19 Q. Okay. Isn't it true that you were not

20 at any meetings with Craig Donoff?

21 A. I don't even know who he is. But who

22 is he?

23 Q. Craig Donoff was Allan Haymes' lawyer.

24 A. Any meetings with Craig Donoff, no, not

25 that I know of.

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1 Q. Isn't it true that you don't know how

2 many meetings Allan Haymes had with Craig Donoff?

3 A. Yes, I don't know.

4 Q. So isn't it true that you do not know

5 who was present for any of these meetings between

6 Allan Haymes and Craig Donoff?

7 A. I assume it was Lois.

8 Q. I don't need you to assume, sir. Do

9 you know?

10 A. I don't know. I didn't even know he

11 met him, so . . .

12 Q. That's fine. Do you know Ed Venezia?

13 A. No.

14 Q. Okay. Do you know if Allan Haymes ever

15 met with Ed Venezia?

16 A. I have no idea who Ed Venezia is. I've

17 never heard the name before.

18 Q. Do you know Seth Ellis?

19 A. I don't know. I met some of his

20 friends, but I don't remember their names. So I

21 really don't know. I don't remember that name --

22 any of those names.

23 Q. Do you know Scott Berger?

24 A. No, I don't know him.

25 Q. Do you know Steven Whites?

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1 A. No. The only name Berger that I know

2 of was the name of one of his partners in a

3 building. That I remember about Berger.

4 Q. I appreciate you volunteering that

5 information. I'm moving to strike it because it's

6 not responsive to the question that I asked you.

7 A. Do I know him?

8 Q. My question was, do you know Steven

9 Whites?

10 A. Same thing, I don't remember any of

11 them.

12 Q. Do you know an attorney named Tammie

13 Massey?


15 Q. Do you know if Allan Haymes ever met

16 with any of those individuals who I just

17 identified?

18 A. Any of those you what?

19 Q. Any of those individuals: Craig

20 Donoff, Ed Venezia, Seth Ellis, Scott Berger,

21 Steven Whites, or Tammie Massey. Do you know if

22 Allan Haymes ever met with any of them?


24 Q. Were you ever present for a meeting

25 between Allan Haymes and any of those individuals?

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2 Q. Okay. Isn't it true that you've never

3 met with any of these professionals?

4 A. Again, I can't say it's true and I

5 can't say it's not true because I don't remember.

6 They could have been in the room with me when we

7 met, you know, and introduced them maybe --

8 introduced me to them, but I don't remember them.

9 Q. That's fine. Isn't it true that Allan

10 never discussed any of his meetings with these

11 professionals with you?

12 A. No, that's not true.

13 Q. Okay. Please tell me everything you

14 remember about any conversations that Allan had

15 with you regarding his meetings with these

16 professionals.

17 A. I don't know these people, number one.

18 Okay. I do know that he had told me he had spoken

19 to his lawyer. I don't remember his name. Maybe

20 it's Donoff. Maybe it's not. I don't remember.

21 The name Donoff I've heard before, but I don't

22 remember. But he had told me he had spoken to his

23 lawyer, yes.

24 Q. Okay. That's fine. Do you know -- now

25 I'm asking for knowledge, not what you assume -- if

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1 Lois was present when Allan's will and trust were

2 signed on January 30th, 2009?

3 A. I don't know.

4 Q. You don't know. Okay. Do you know,

5 not do you assume, if Lois was present for any

6 meetings with Craig Donoff and Allan Haymes?


8 Q. Okay. So it's true to say that you

9 have no personal knowledge of Lois having any

10 involvement with Craig Donoff in the preparation of

11 Allan Haymes' will?

12 A. Only Craig Donoff?

13 Q. Yes, sir.

14 A. Not Allan?

15 MR. TORNINCASA: Can you please read my

16 question back again?



19 THE WITNESS: My answer is I do have

20 personal knowledge about Allan Haymes' will,

21 which he told me he was with Lois and the

22 lawyer. I don't remember the lawyer's name.

23 So I can't answer that question the way you

24 asked me, but that's the way I remember.


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1 Q. Okay. So that's a no then?

2 A. Whatever. That's the answer I'm giving

3 you. See, it's not a no or a yes. It's that I

4 know he met with his lawyer, okay. I don't

5 remember his lawyer's name. And Lois. I know that

6 they talked about it because he told me the lawyer,

7 she's going to take care of it. So they met.

8 But you're asking me if Craig Donoff is

9 the lawyer; I don't know. Or those other people, I

10 don't know.

11 Q. That's fine. Would Allan Haymes often

12 discuss with you what he discussed with his

13 lawyers?

14 A. Would he?

15 Q. Yes.

16 A. We have had conversations on that, yes.

17 Q. Were you ever present for a

18 conversation between Lois and Allan about Allan's

19 will? It's a yes or no.

20 A. I'm trying to think.

21 Q. That's fine.

22 A. I was present at a time with Lois and

23 Al when Lois mentioned his will. Okay?

24 Q. What did Lois say about his will?

25 A. Exactly word for word I don't remember.

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1 However, the gist of the -- of what she said, if

2 I'm allowed to say that.

3 Q. Please.

4 A. Don't worry about the will, or

5 something to that effect, it's none of my business.

6 Q. Okay. Who in this conversation where

7 you and Allan and Lois were all present brought up

8 the will?

9 A. Okay. We were --

10 Q. There's only three people.

11 A. I understand that, but you want to say

12 who brought it up. It could have been me. It

13 could have been her, but I'm not sure. It was in a

14 separate room without Allan, and then we came out

15 of the room, and then she told me the same thing.

16 None of my business.

17 Q. Logically, to me -- let me start it

18 over.

19 And it was not Allan, you're sure of

20 that part?

21 A. About what?

22 Q. It was you --

23 A. He was --

24 Q. -- Lois and Allan, and you said it

25 could have been you, or it could have been Lois.

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1 So it was not Allan; is that correct?

2 A. Allan was in a state of fear of Lois.

3 Q. Sir --

4 A. So he couldn't bring it up. He said,

5 drop it, Jack.

6 Q. I'm moving to strike the narrative.

7 And I'm going to ask you the same exact question.

8 Was it Allan who brought it up? Yes or no.

9 A. No.

10 Q. It wasn't Allan?

11 A. No, he didn't bring it up.

12 Q. Just my question, sir. And you just

13 testified to this. Lois said, don't worry about

14 the will. Is that -- was that your testimony?

15 A. No. Mind your own -- well, it's none

16 of my business. The main -- the gist of it.

17 Q. The gist was it was none of your

18 business?

19 A. Not verbatim.

20 Q. Okay.

21 A. The gist was, mind your own business.

22 It's none of your business. None of your business.

23 Q. Okay. That's fine.

24 A. And then when she said that, Al said,

25 Jack --

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1 Q. Sir, I don't need anything. All I

2 needed was an answer to my question, which was the

3 gist, and thank you for that.

4 I'm going to move to strike the

5 remainder as a narrative. It's uncalled for by the

6 question.

7 A. Okay. Strike that.

8 Q. There was no one in the room besides

9 you Lois and Allan; is that correct?

10 A. Let me see. I don't know whether

11 Florence was in the room. She may have been. But

12 she might have been in the room, but I don't

13 remember.

14 Q. You don't remember. Okay.

15 A. It was at a time -- it was a time when

16 he called me and begged me to come up and take him

17 out.

18 Q. All I need to know is who was in the

19 room, sir. I don't need a narrative.

20 I'll move to strike that as

21 nonresponsive. And answer the question who was in

22 the room.

23 Your answer to the question is that

24 there may have been Florence in the room, but you

25 don't remember?

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1 A. Yeah.

2 Q. Thank you. Do you know what any of

3 Allan Haymes' wills or trusts --

4 A. No.

5 Q. -- provide for Zylo Marshall?

6 A. Do I know if any of -- in his will or

7 trust for Zylo Marshall?

8 Q. Do you know what any of Allan Haymes'

9 wills or trust left to Zylo Marshall?

10 A. Do I know of any wills -- I understand

11 that he -- well, I really don't know. I really

12 don't know what was in the will, so I can't answer

13 that yes I know for sure. But I understand that

14 she offered him so much money or whatever.

15 Q. Thank you for your response. I'm

16 moving to strike it as nonresponsive.

17 A. Okay.

18 MR. MARSHALL: He can answer yes or no

19 to the question. It's yes or no, or you

20 don't know. That would be great.

21 THE WITNESS: Okay.


23 Q. Is it not true that you have no

24 personal knowledge of what Allan Haymes left for

25 Zylo in any of his wills or trusts?

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1 A. "is it not true," what does that mean?

2 Is it not true that I know -- I heard that.

3 Q. Do you understand my question?

4 A. No, I don't understand the question.

5 Is it not true? Give it to me straight.

6 Q. Is this a true statement --

7 A. Okay.

8 Q. -- you have no knowledge of what Allan

9 Haymes' wills or trusts leave to Zylo Marshall?

10 Is that a true statement? Yes or no.

11 A. Only by hearsay. The answer's no,

12 except by hearsay, which is --

13 Q. So someone has told you what those

14 documents provide. Is that what you mean?

15 A. Well --

16 Q. You've never seen the documents

17 yourself?

18 A. No, I never saw documents, so I don't

19 know what they provide.

20 Q. All right. Do you know if Lois knew

21 what any of Allan's wills or trusts provided for

22 her or for Zylo prior to Allan dying?

23 A. You said I can't assume anything.

24 Q. No. I want to know what you know.

25 A. I only know that Lois was -- from

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1 Allan, Allan told me that Lois was there present

2 with the lawyer, his lawyer, with Lois.

3 Q. Do you know which lawyer --

4 A. I don't know which lawyer it was.

5 Q. That's fine. How did Allan come to

6 hire Craig Donoff as his lawyer. Do you know?

7 A. He may have been a friend of his. I'm

8 not sure. See, I'm not sure about that.

9 Q. Jack --

10 A. You see the more you repeat the name,

11 the more I'm thinking he may have mentioned Craig

12 Donoff. That's the only -- of all the people you

13 mentioned, that's the only one that sounds a little

14 bit familiar. But I don't -- you know, he may have

15 been a friend, a lawyer, I don't know. But I know

16 that he had a lawyer. I don't want to be --

17 Q. I appreciate the explanation, but I'm

18 moving to strike the answer as nonresponsive.

19 Do you know how Craig Donoff became

20 Allan Haymes' lawyer?

21 A. No.

22 Q. Was that a no?

23 A. No.

24 Q. Thank you.

25 A. Yes, it's a no.

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1 Q. Perfect. That's all I need.

2 A. Okay.

3 Q. Do you know what was said to Craig

4 Donoff to prepare the current will?

5 A. No.

6 Q. Do you know if Lois told Craig Donoff

7 what the current will should say?

8 A. No.

9 Q. Do you know who the witnesses to the

10 current will were?

11 A. No.

12 Q. Do you know a woman named Stephanie

13 Martin?

14 A. No.

15 Q. Do you know a gentleman named Richard

16 Kennedy?

17 A. No.

18 Q. Do you know if Allan knew either

19 Ms. Martin or Mr. Kennedy?

20 A. No.

21 Q. Do you know if Lois knew Ms. Martin or

22 Mr. Kennedy?

23 A. No.

24 Q. Do you know if Lois obtained Ms. Martin

25 and Mr. Kennedy to be witnesses for the will?

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1 A. No.

2 Q. After Allan signed his January 30th,

3 2009, will, do you know who the signed will was

4 given to?

5 A. No.

6 Q. Do you know if Allan kept it in

7 Florida?

8 A. No.

9 Q. Okay. Do you know the names of any of

10 Allan's doctors?

11 A. No.

12 Q. Do you know Irl Exstein?

13 A. No.

14 Q. Do you know Ken Cohen?

15 A. No.

16 Q. Do you know Steven Essig?

17 A. No.

18 Q. Did you know that in 2008 Steven Essig,

19 who is a neurologist, examined Allan Haymes and

20 concluded that Allan had capacity to make a will?

21 A. Do I know it?

22 Q. Did you know that? Yes or no.

23 A. I don't even know who the doctor is.

24 So I don't know that that doctor said that, but I

25 believe it.

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1 Q. That's fine. Thank you.

2 Do you know if Lois knew what was left

3 to her or to Zylo under Allan's 2009 will and

4 trust?

5 A. Is that the last will?

6 Q. That's the last one, the January 30th

7 one. Do you know --

8 A. Through hearsay -- I don't know. No, I

9 can't say I know because I never read the will.

10 Q. Okay. Do you know if Lois knew what

11 was left to her or to Zylo under the prior version

12 of the will?

13 A. Do I know?

14 Q. Do you know --

15 A. From Allan --

16 Q. -- if Lois knew?

17 A. -- from Allan's mouth I knew, but

18 that's what he said. I know what he said, but I

19 didn't see the document.

20 Q. Okay.

21 A. Does that mean what, nonresponsive?

22 Q. I actually don't understand it, so I

23 don't know. In an abundance of caution I'm moving

24 to strike as nonresponsive. I'm going to try to

25 ask that question a different way.

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1 Do you know for a fact that Lois knew

2 the contents of any of Allan's wills or trusts?

3 A. I personally for a fact; no.

4 Q. Okay. And we've established that

5 you've never reviewed any of Allan's wills or

6 trusts?

7 A. Yes.

8 Q. Okay. But you have spoken to him about

9 the wills and trusts?

10 A. Yes.

11 Q. And would it be fair to say that those

12 conversations occurred after Carol died or before

13 Carol died?

14 A. After Carol died.

15 You just reminded me of something.

16 What did Allan say to me about his will? Do you

17 remember?

18 Q. Okay. You want to amend that answer?

19 A. Yeah.

20 Q. Okay.

21 A. He also said that he has some nieces

22 and nephews that he's going to take care of at the

23 same time, when I spoke to him about Brian, to take

24 care of Brian, whatever. He said he also said he's

25 taking care of them also in his will.

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1 So like I say, from time to time, we

2 spoke about his will at different times. It just

3 reminded me that that was part of it too. And

4 the -- they're all -- the family will, you know,

5 watch out that Brian gets his fair share.

6 Q. That is a great answer, and thank you

7 for amending that. Okay.

8 Besides saying "will take care of", was

9 there any more specifics given?

10 A. About that will?

11 Q. About that will, yes.

12 A. Like I said, my memory is not that

13 good, but I remember certain parts.

14 Q. If you don't remember anything else,

15 that's fine.

16 A. Okay.

17 Q. Is it fair to say you don't remember

18 anything else beyond what you just testified to?

19 A. Well, I testified that Allan said he

20 was going to take care of Brian like he would his

21 own daughter, Denise, who was killed.

22 Q. I don't need a full recap. I just need

23 to know --

24 A. I just want to --

25 Q. I understand, and I'm going to --

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1 A. Let me finish. You want to know what

2 he said.

3 Q. No, no, sir. All what I asked you was,

4 was it fair to say that you don't remember anything

5 beyond --

6 A. No.

7 Q. -- your last piece of testimony?

8 A. It's not fair to say it.

9 Q. Okay. What else do you remember then?

10 A. Okay. I brought up the fact that I

11 remembered that --

12 Q. I don't need a recap of everything you

13 already brought up. I just need the new stuff,

14 sir.

15 A. Now, you're intimidating me.

16 Q. I apologize if that's intimidating,

17 but --

18 A. But you are.

19 Q. -- I've explained to you that I have to

20 pay by the page for this transcript, and I don't

21 need multiple repetitions of things in there. So

22 if you want to go off the record and work your way

23 through it, that's fine. And then when you're

24 ready to get to the new part, we can put that on

25 the record.

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1 A. Go ahead.

2 Q. Okay. We'll go off the record.



5 Q. You can now give me the answer to your

6 question. We are back on the record, sir.

7 A. Okay. So I can't say for sure because

8 my memory is not 100 percent, but things do keep

9 coming back.

10 Q. Thank you. I had asked you if you

11 recalled conversations with you, Lois, and Allan

12 about Allan's will, and you had brought up one

13 episode.

14 Besides the one that we've already

15 discussed, do you remember any other conversations?

16 A. Not at this point, no.

17 Q. Was that a no?


19 Q. Thank you. While Carol was still

20 alive, how often would you visit with Allan?

21 A. I would say about once every three

22 weeks, more or less.

23 Q. Okay. Once a month, maybe twice a

24 month at the most?

25 A. Yeah.

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1 Q. When did Carol pass away?


3 Q. Was it before 2010?


5 Q. Was it before 2005?

6 A. I don't even want to answer the

7 question because I don't remember. It was

8 traumatic for me too.

9 Q. Okay. I understand. I'm just trying

10 to get a feel for the scope of what you can recall.

11 A. I know.

12 Q. So was it within the last 15 years?

13 A. I don't remember. I don't care if you

14 say 20 years. I'm not saying no. But I know it

15 was a few years before Allan died.

16 Q. Did your visitation schedule with Allan

17 change after Carol died?

18 A. In the beginning, no. As a matter of

19 fact, it increased.

20 Q. Increased. Okay.

21 Now, you said "in the beginning." Does

22 that mean that it changed again later?

23 A. Yes, it did change later.

24 Q. How did it change later?

25 A. Lois forbid me from seeing Allan, and

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1 she put barriers in front of me not to see him. I

2 had to call her first and then she'll call me back

3 and --

4 Q. Sir --

5 A. -- that's --

6 Q. I'm moving to strike --

7 A. You're asking me how.

8 Q. All I'm concerned right now is the

9 numbers. Would it be safe to say the numbers went

10 down?

11 A. You didn't hear that. The question was

12 how.

13 Q. Yes.

14 A. How many times --

15 Q. Before it was weekly.

16 A. Why did you -- what was your question

17 when you asked me about --

18 Q. My first question to you was: How

19 frequently did you see Allan Haymes prior to

20 Carol's death? And you said that it was

21 approximately monthly, every three weeks.

22 A. Right. Two to three weeks. You were

23 right. Sometimes two weeks, sometimes a month,

24 sometimes five weeks. But, you know, we saw each

25 other quite often.

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1 Q. My next question to you was: Did it

2 change after Carol died?

3 A. Yes.

4 Q. You said in the beginning it increased?

5 A. Yes.

6 Q. Okay. And then I said to you, did it

7 change after that, and you said yes.

8 A. Yes.

9 Q. Okay. And after that it decreased. Is

10 that your testimony?

11 A. That's not what the question was

12 before.

13 Q. Well, I'm trying to clarify the

14 question --

15 A. No. Repeat it.

16 Q. -- because I'm not interested in the

17 narrative.

18 A. Can you repeat the question? I'm not

19 talking about now. Before what he asked me was,

20 how or why didn't I see him more often or

21 something. I'd like to hear that question.

22 Q. I'm going to strike that question

23 because the answer --

24 A. I want to hear the question. Why

25 strike it? I was responding to you. You didn't

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1 like my response, so now you want to strike it?

2 Q. Okay. I'm going to move to strike that

3 as well.

4 I'm going to ask you a question that is

5 more clear. In terms of the frequency of your

6 visits with Allan Haymes, how did they change after

7 Carol died? I'm only interested in the frequency.

8 A. Right, okay. How?

9 Q. The frequency.

10 A. Yeah. How. Well, you want to know how

11 means how did --

12 Q. I don't want the causes. I want the

13 frequency, sir.

14 A. Well, what does the word -- "how" means

15 you want to know what caused it.

16 Q. Which is why we're striking my prior

17 question because you're not understanding what I'm

18 trying to ask you.

19 I'm asking you to describe the

20 frequency and describe the changes to the frequency

21 following Carol's death.

22 A. Right.

23 Q. That's it.

24 A. Well, in -- over time it was very

25 frequent. And then I wasn't allowed to see him,

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1 and there was -- so what you are talking about, how

2 frequently was it from the day Carol died until the

3 day Al died? Explain that question to me. That

4 way I might be able to answer it. But, yes, they

5 got less.

6 Q. That's perfect. Thank you, sir.

7 Do you remember writing a letter or

8 making a statement in the past that Allan would not

9 let Lois keep you from seeing her?

10 A. Yes.

11 Q. Thank you.

12 A. That was in -- that was in the

13 beginning.

14 MR. MARSHALL: Can you ask it again,

15 Matt? He did a double negative there. Ask

16 the question again, please.

17 THE WITNESS: Ask it again.


19 Q. Did you understand the question,

20 Mr. Levy?

21 A. I'm not sure. I think. I'm not sure.

22 MR. TORNINCASA: Can you read my prior

23 question back to him, please.



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1 MR. MARSHALL: Would not let Lois keep

2 you from seeing -- would not let -- would not

3 allow --

4 MR. TORNINCASA: Mr. Marshall, I don't

5 need you to explain the question to the

6 deponent, sir.


8 Q. Did you understand that question?

9 MR. MARSHALL: I didn't understand the

10 question. Ask it again.

11 THE WITNESS: What time frame are you

12 talking about?


14 Q. It's a yes-or-no question, sir.

15 Do you remember making a statement --

16 MR. TORNINCASA: Mr. Marshall, if you

17 suggest another answer to the deponent, we

18 will end this. I will have you in front of

19 the Court, and I will be seeking sanctions.

20 I've heard you attempt to tell Mr. Levy to

21 say, no. And I do not appreciate that.

22 THE WITNESS: No, no. Let's back up a

23 minute. There's a frame of time involved

24 here. At one time he was -- he said that in

25 the beginning and he --

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2 Q. That's all I need, sir.

3 A. At one time of his life. Towards the

4 end of his life, it was a different story.

5 Q. That's fine.

6 A. Okay?

7 Q. Thank you. You've answered my

8 question.

9 A. Fine.

10 Q. Do you believe that Allan had

11 testamentary capacity when Lois started to come to

12 take care of him?

13 A. When you say "testamentary" --

14 Q. Was he able to make a will?

15 A. Yes. I believe so.

16 Q. Okay. Thank you.

17 A. When she came down --

18 Q. That's all --

19 A. Wait a minute. I want to make you

20 understand. When she came down, at that time that

21 she came down, was he mentally capable of making a

22 will? Yes.

23 Q. Thank you. That's the whole question.

24 A. I want to strike that. I'm not so sure

25 about that. It was when we went dancing. I

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1 remember now. No, I take it back. Can I take it

2 back, because I'm thinking now when it happened.

3 She came down when he was very, very

4 fragile, and I don't remember exactly. When did

5 she come down? The same -- I don't remember the

6 time when she came down.

7 Q. My question to you, sir, is --

8 A. But he was -- let me explain something.

9 Okay? It's very important that I --

10 Q. Mr. Levy --

11 A. I can't answer your question.

12 Q. I need you to answer just the

13 questions. I haven't asked you a question for two

14 minutes --

15 A. Well, I'm trying to answer that --

16 Q. -- because you keep going back to --

17 you can retract your answer, and that's fine.

18 A. I'm retracting the answer. Why?

19 Because --

20 Q. I don't need a why on the record, sir.

21 If you are no longer sure of your answer and you

22 want to take it back, that's fine.

23 A. Yes, yes.


25 A. Do you want me to answer it now?

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1 Q. No. Thank you.

2 Do you know when Lois first came to

3 Florida to help Allan Haymes?

4 A. When? The date?

5 Q. Yes, sir.

6 A. No.

7 Q. Do you have a rough approximation of

8 when Lois first started coming to Florida to help

9 Allan Haymes?

10 A. I don't remember when, but it was

11 before he had ended up in the nursing home.

12 Q. Okay. Was Carol still alive?

13 A. No.

14 Q. Okay. When Lois came to Florida to

15 help Allan, did she come here full-time or would

16 she spend some time in Florida and some time still

17 in California?

18 A. Part-time.


20 Do you have any specific knowledge of

21 an episode where Lois Haymes unduly i

Jack Levy's Deposition (Part 3)

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Transcript of Jack Levy's Deposition (Part 3)