However, Mr. Netanel tries to soften the matter and explain that it was done before the plaintiff received possession and in the absence of completion of the payment of the consideration (ibid., paras. 27-39). I will address these arguments later in my career. In any event, later in his testimony, Mr. Netanel clarifies that with Mr. Appel's demand to vacate the store, this store was evacuated within 24 hours (p. 38, paras. 12-29). Later on, too, Mr. Netanel admits that the defendant's equipment was stored in the store even after receiving Form 4, and until after Mr. Appel's inquiry on the matter (p. 39, paras. 1-9), when here too he does not know how to indicate the exact date of the evacuation, due to the claim that he does not remember dates.
- Netanel is referred in his cross-examination (p. 41, paras. 19-25) to the plaintiff's letter dated May 14, 2018 (Appendix D to Steindem's affidavit), according to which -
"I would also like to point out that the date of delivery of the stores according to the agreement has long passed, the landlords who signed the lease agreements with us canceled due to the long delay in delivery, and at the moment we cannot commit to other tenants because it is not known when the delivery will take place. Please let us know when the possession of the stores will be handed over after the partitions are repaired and the specifications are completed and the commercial space is divided."
Mr. Netanel argues in response that this is a lie, when he means that he was not a potential tenant, despite the plaintiff's claims in the matter (ibid., paras. 26-39).
- Netanel is referred to other letters that reached the defendant, such as the letter from Adv. Ilan Shlomovitz, on behalf of the plaintiff, dated June 1, 2018 (Appendix E to the Steindem affidavit), addressed to Adv. Zehavit Netanel Yamin (daughter of Mr. Netanel, who serves as an attorney for the defendant and works in the law firm of Schnitzer Gottlieb Samet), in which it was claimed that 22 months had passed from the date of delivery, Form 4 had not yet been received and the store had not yet been delivered. It should be noted that in response to this letter, Mr. Netanel himself replied, while attaching a parallel correspondence between the parties regarding the A.P.C. Housing Stores from that period (Appendices 7 and 8 to Steindem's affidavit). In any event, in the course of his cross-examination, Mr. Netanel claimed that he had not received the letter, and that his daughter had not updated him, when, according to him, she was not in daily contact with him (p. 43, paras. 18-21). It should be noted that the correspondence mentioned above indicates that Mr. Netanel actually responded to this letter.
- Netanel is also referred to the letter of Adv. Shlomovitz on behalf of the plaintiff dated June 17, 2018 (Appendix J to the Steindem affidavit), which relates to the defendant's letter of June 10, 2018. In this letter, Adv. Shlomovitz clarifies that the store has not yet been delivered, contrary to the provisions of the agreement. He also refers to the claims regarding the completion of the consideration, and clarifies that the plaintiff is entitled to offset for her losses. In the matter of this letter as well, Mr. Netanel replies that he did not see the letter (p. 44, s. 37).
- Netanel is also referred to Adv. Shlomovich's letter dated November 20, 2018 (Appendix 12 to the Steindem affidavit), in which reference is also given to the issue of consideration, which, according to the agreement, is supposed to be paid 7 days prior to the date of delivery, and when a occupancy form is given (i.e., Form 4), and in this letter Adv. Shlomovitz requests that the defendant give 14 days' advance notice of the date of occupancy. Here Mr. Netanel already replies that the store was delivered when the building was finished (p. 47, paras. 10-13). Needless to say, Mr. Netanel's answers on the matter are incoherent and are inconsistent with what was stated in the extensive correspondence between the parties.
- With regard to the defendant's claim that the store was delivered upon receipt of Form 4 and even earlier, Mr. Netanel is referred to the defendant's own correspondence, which has already been mentioned above: In response to Adv. Shlomovitz's letter dated June 1, 2018 (Appendix E to Steindem's affidavit), the defendant responds in a letter dated June 10, 2018, signed by Mr. Netanel himself, according to which he is addressed to the corresponding correspondence with respect to A.P.Z. Housing Stores, a letter from Adv. Esther Mosko on behalf of A.P.Z. Housing dated May 28, 2018 (Appendix G to Steindem's affidavit) and the defendant's reply letter of June 3, 2018 (Appendix H to Steindem's affidavit). The two letters signed by the defendant (Appendices F and C) do not state that the store has already been delivered. It should be emphasized that we are dealing with, as stated, a letter to A.P.Z. Housing and not to the plaintiff in question. In any event, as part of his cross-examination, Mr. Netanel is asked to indicate where in his letters it was stated that the store was delivered, and he is not wise enough to do so.
- It should be noted that in paragraph 2.1 of the letter Appendix H (the only letter in which the defendant responds to the claims of P.Z. Housing, and which was also attached as a response to the plaintiff's reply in this case), the following was written:
"... It was agreed with your client that upon the purchase of the third unit (i.e., the store in question. 18) It will deliver all the units at the envelope level. Moreover, your client negotiated the rental of the units she owns using the open space method, and even gave the undersigned an appropriate notice in the matter, and thus, without derogating from the above, your client expressed her consent once again to the delivery of all the units next to her at the level of such envelope."