Preview
FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------X
AMAZING HOME CARE SERVICES, LLC, Index No: 650789/2018
BORO PARK OPERATING COMPANY, LLC
Plaintiffs,
-against-
APPLIED UNDERWRITERS CAPTIVE RISK
ASSURANCE COMPANY, INC.,
APPLIED UNDERWRITERS, INC.,
APPLIED RISK SERVICES, INC.
APPLIED RISK SERVICES OF NEW YORK, INC,
CONTINENTAL INDEMNITY COMPANY,
ILLINOIS INSURANCE COMPANY,
CALIFORNIA INSURANCE COMPANY,
ARS INSURANCE COMPANY,
HUB INTERNATIONAL NORTHEAST
LIMITED,
OXFORD COVERAGE, INC. and JOSEPH
SCHWARTZ
Defendants,
---------------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT HUB INTERNATIONAL
NORTHEAST LLC'S MOTION TO DISMISS
Havkins Rosenfeld Ritzert & Varriale
Attorneys for Defendant
HUB International Northeast Limited
6u'
1 Battery Park Plaza, floor
New York, New York 10004
On the brief:
Abraham E. Havkins, Esq.
Anita S. Cohen, Esq.
{03246233.DOCX /}
1 of 7
FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018
PRELIMINARY STATEMENT
Defendant HUB International Northeast Limited (hereinafter referred to as "HUB")
respectfully submits this Memorandum of Law in support of its motion for an Order dismissing
Amazing Home Care Services, LLC and Boro Park Operating Company's (hereinafter jointly
Services"
referred to as "Amazing Home Care or "Plaintiffs") Complaint against HUB pursuant
to Civil Practice Law and Rules ("CPLR") §3211(a)(1), on the basis that a defense is founded
upon documentary evidence, and §3211(a)(7), on the basis that plaintiff failed to state a cause of
action on which relief may be granted.
Workers'
This action arises from Amazing Home Care's purchase of a Compensation
"EquityComp"
Insurance Plan known as an plan from a group of insurers which Plaintiffs jointly
Defendants."
refer to as "the Applied Oxford Coverage, Inc. ("Oxford") and Joseph Schwartz
("Schwartz") served as Amazing Home Care's insurance brokers, and allegedly recommended
that Amazing Home Care purchase the EquityComp plan. When Amazing Home Care became
dissatisfied with the EquityComp plan, itinitiated this action against the Applied Defendants,
Oxford and Schwartz. Apparently operating under the mistaken impression that HUB was a
successor to Oxford, Amazing Home Care also named HUB as a defendant and referred to it as
one of the "Oxford Defendants". However, not only does Amazing Home Care failto allege that
HUB is a successor to Oxford, but even if such an allegation had been made, HUB would not be
liable under a theory of successor liability since itpurchased only assets from Oxford and
expressly declined to assume any liabilities incurred prior to the date of the asset purchase. HUB
therefore seeks an Order dismissing allclaims against it.
{03246233DOCX /)
2 of 7
FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018
ARGUMENT
POINT I
PLAINTIFF'S CLAIMS AGAINST HUB MUST BE DISMISSED BECAUSE THEY FAIL
TO STATE A CAUSE OF ACTION UPON WHICH RELIEF CAN BE GRANTED.
Pursuant to CPLR § 3211(a)(7), "[a] party may move for judgment dismissing one or
more causes of action asserted against [it]on the ground that the pleading fails to state a cause of
action."
CPLR § 3211(a)(7) (McKinney 2008). In such scenarios, the Court must determine
whether, accepting as true the factual averments in the Complaint and affording the plaintiff the
benefit of all favorable inferences which may be drawn therefrom, the plaintiff "can succeed
stated."
upon any reasonable view of the facts Lewis v. Drake, 295 A.D.2d 482, 744 N.Y.S.2d
856 (2d Dep't 2002); see also People v. New York City Transit Auth., 59 N.Y.2d 343, 465
N.Y.S.2d 502 (1983); Blumenreich v. N. Shore Health Sys., 287 A.D.2d 529, 731 N.Y.S.2d 638
(2d Dep't 2001); TKO Fleet Enters. v. Elite Limousine Plus, Inc., 286 A.D.2d 436, 729 N.Y.S.2d
193 (2d Dep't 2001). The court does not, however, grant such consideration when the plaintiff's
allegations consist of bare legal conclusions or are factual claims inherently incredible or flatly
contradicted by documentary evidence. See Chemical Bank v. Ettinger, 196 A.D.2d 711, 602
N.Y.S.2d 332 (1st Dep't 1993); Gertier v. Goodgold, 107 A.D.2d 481, 487 N.Y.S.2d 565 (1st
Dep't 1985), aff'd, 66 N.Y.2d 946, 498 N.Y.S.2d 779 (1985), citing, Roberts v. Pollack, 92
A.D.2d 440, 461 N.Y.S.2d 272 (1st Dep't 1983).
In its Complaint, Amazing Home Care does not even allege, that HUB is a successor to
Oxford. Rather, Amazing Home Care's Complaint merely states that "Defendants HUB, Oxford
and Schwartz are affiliated and related to each other, and are individually and collectively
Defendants."
referred to herein as "The OXford See Complaint at $17. Clearly, Amazing Home
Care's allegation concerning HUB is nothing but a bare legal conclusion, with no basis in law or
{03246233.DOCX /)
3 of 7
FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018
fact. And lumping HUB together with two distinct legal entities rather than making allegations
directly against HUB is improper. Even accepting the conclusory allegations that HUB is related
or affiliated with Oxford or Schwartz is not a legal basis to impose liability. Accordingly, the .
allegations against HUB must be dismissed pursuant to CPLR §3211(a)(7) for failure to state a
cause of action.
POINT II
HUB CANNOT BE HELD LIABLE TO AMAZING HOME CARE
BECAUSE IT DID NOT ASSUME LIABILITY FOR OXFORD'S ACTIONS
PRIOR TO THE TIME OF THE ASSET PURCHASE AGREEMENT
Even ifPlaintiffs had alleged that HUB was a successor to Oxford, their claims against
HUB would fail because HUB did not buy stock in Oxford; it merely entered into an Asset
Purchase Agreement under which it purchased certain assets while Oxford retained other assets.
Moreover, HUB specifically did not assume liability for any actions which occurred prior to the
- Plaintiffs'
effective date of the Asset Purchase October 1, 2015. Since Complaint specifies that
the actions which are the subject of the Complaint occurred "in or around January and February
thereto..."
2015, and for a period of time prior (See Complaint at ¶50), HUB cannot be held
liable for those actions.
Under New York law, the asset purchase agreement itself is viewed as the firstindication
of whether or not liabilities are assumed, and, where the agreement does not specifically state
that the liabilities are to be assumed, the courts are highly reluctant to make any such
assumptions. In Oorah Inc. v. Covista Communication and Birch Telecom. Inc.,2014 N.Y.
Misc. LEXIS 4239 (Supt. Ct. N.Y. Cty., Sept. 25, 2014), the court explained that "'[w]hile no
precise rule governs the finding of implied liability, the authorities suggest that the conduct or
{03246233DOCX / }
4 of 7
FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018
representations relied upon by the party asserting liability must indicate an intention on the part
seller.'" Laidlaw-
of the buyer to pay the debts of the (Id. at *11, quoting Ladjevardian v.
Coggeshall Inc., 431 F. Supp. 834, 839 (S.D.N.Y. 1974)). Because the plaintiff in Oorah had not
made a factual pleading as to any conduct or representations by the defendant demonstrating an
intention to pay the debts of the seller, and because the assets purchase agreement had
specifically disclaimed the defendant's assumption of the seller's liabilities, the court found that
the plaintiff had failed to state a claim for successor liability. In the instant matter as well, the
express language of the Asset Purchase Agreement, as well as the absence of any allegations by
the plaintiff that HUB's conduct or representations demonstrated an intent to assume liabilities
incurred by Oxford prior to the date of the Asset Purchase Agreement, clearly demonstrates that
there was no assumption of liabilities in connection with the purchase of the EquityComp plan.
The Asset Purchase Agreement which HUB entered into effective October 1, 2015 reads,
in relevant part:
Section 2.3 Assumed Liabilities. Under the terms and subject to
the Conditions of this Agreement, at the Effective Time, the Purchaser
shall assume and agree to pay, perform and discharge when due the
Liabilities arising out of or relating to the ownership of the Purchased
Assets by the Purchaser after the Effective Time, in each case only to
the extent that such Liabilities (a) firstarise or accrue after the Effective
Time and relate to the period from and after the Effective time, (b) do not
arise as a result of any action, inaction, error, omission, breach or default
by the Seller or any of its Affiliates prior to or as of the Closing, and (c)
are not included in the Retained Liabilities or otherwise the responsibility
of the Seller pursuant to this Agreement (collectively, the "Assumed
Liabilities").
Section 2.4 Retained Liabilities. Notwithstanding anything to the
contrary in this Agreement or any Ancillary Agreement and regardless of
any disclosure by the Seller to the Purchaser, the Seller shall retain and
remain responsible for paying, performing and discharging when due,
and the Purchaser shall not assume or otherwise be responsible for, all
Liabilities of the Seller and its Affiliates other than the Assumed Liabilities
(collectively the "Retained Liabilities) including the following:
{03246233.DOCX / )
5 of 7
FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018
(a) All Liabilities arising out of, relating to or in respect of the
operation or conduct of the Business or the ownership or use of
the Purchased Assets prior to or as of the Effective Time...
Asset Purchase Agreement, relevant sections of which are annexed to the Affidavit of William
DeVito.
Thus, the Asset Purchase Agreement provides documentary evidence that Oxford
retained responsibility for all liabilities of the assets prior to the date of the Asset Purchase.
Since the facts giving rise to this dispute occurred in January/February of 2015 and the Asset
Purchase was not executed until October 1, 2015, some eight months after the purchase of the
EquityComp plan, only Oxford would be liable for acts and/or omissions that occurred in
connection with the purchase of the Equity/Comp plan. Accordingly, HUB is entitled to
dismissal of allclaims pursuant to CPLR § 3211 (a)(1).
POINT III
THE DISMISSAL SHOULD BE WITH PREJUDICE
It iswell established that leave to amend should be denied where the amended complaint
would be futile. See, e.g. Saferstein v. Mideast Systems Ltd., 143 A.D.2d 82, 83 (App. Div. 2d
Dep't 1988)("Although leave to amend a pleading should be freely granted (see, CPLR 3025 [b];
Edenwald Contr. Co. v City of New York, 60 NY2d 957), the court is not required to permit
futile amendments which may lead to needless litigation (see, e.g., General Motors Acceptance
Corp. v Shickler. 96 AD2d 926)").
In this case, Plaintiff should not be granted leave to amend because the Complaint is not
merely defectively pled. Rather, itis meritless since the documented evidence demonstrates that
HUB cannot be liable to the plaintiff under any circumstances. Accordingly, leave to amend
should be denied as futile.
{03246233DOCX / ]
6 of 7
FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018
CONCLUSION
Plaintiff has failed to identify an iota of evidence to support a finding that HUB has any
liability in this action, either individually or as a successor-in-interest. For the reasons detailed
above, HUB therefore respectfully requests that the Court issue an Order dismissing, with
prejudice, all claims against HUB pursuant to CPLR §§321l(a)(1) and (a)(7).
Dated: New York, New York
.,
October 17, 2018
Abraham E. Havkins, Esq.
Anita S. Cohen, Esq.
Havkins, Rosenfeld, Ritzert & Varriale, LLP
Attorneys for Defendant
HUB International Northeast Limited
6th
1 Battery Park Plaza, flOOr
New York, New York 10004
{03246233.DOCX/ }
7 of 7
Preview
FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------X AMAZING HOME CARE SERVICES, LLC, Index No: 650789/2018 BORO PARK OPERATING COMPANY, LLC Plaintiffs, -against- APPLIED UNDERWRITERS CAPTIVE RISK ASSURANCE COMPANY, INC., APPLIED UNDERWRITERS, INC., APPLIED RISK SERVICES, INC. APPLIED RISK SERVICES OF NEW YORK, INC, CONTINENTAL INDEMNITY COMPANY, ILLINOIS INSURANCE COMPANY, CALIFORNIA INSURANCE COMPANY, ARS INSURANCE COMPANY, HUB INTERNATIONAL NORTHEAST LIMITED, OXFORD COVERAGE, INC. and JOSEPH SCHWARTZ Defendants, ---------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT HUB INTERNATIONAL NORTHEAST LLC'S MOTION TO DISMISS Havkins Rosenfeld Ritzert & Varriale Attorneys for Defendant HUB International Northeast Limited 6u' 1 Battery Park Plaza, floor New York, New York 10004 On the brief: Abraham E. Havkins, Esq. Anita S. Cohen, Esq. {03246233.DOCX /} 1 of 7 FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018 PRELIMINARY STATEMENT Defendant HUB International Northeast Limited (hereinafter referred to as "HUB") respectfully submits this Memorandum of Law in support of its motion for an Order dismissing Amazing Home Care Services, LLC and Boro Park Operating Company's (hereinafter jointly Services" referred to as "Amazing Home Care or "Plaintiffs") Complaint against HUB pursuant to Civil Practice Law and Rules ("CPLR") §3211(a)(1), on the basis that a defense is founded upon documentary evidence, and §3211(a)(7), on the basis that plaintiff failed to state a cause of action on which relief may be granted. Workers' This action arises from Amazing Home Care's purchase of a Compensation "EquityComp" Insurance Plan known as an plan from a group of insurers which Plaintiffs jointly Defendants." refer to as "the Applied Oxford Coverage, Inc. ("Oxford") and Joseph Schwartz ("Schwartz") served as Amazing Home Care's insurance brokers, and allegedly recommended that Amazing Home Care purchase the EquityComp plan. When Amazing Home Care became dissatisfied with the EquityComp plan, itinitiated this action against the Applied Defendants, Oxford and Schwartz. Apparently operating under the mistaken impression that HUB was a successor to Oxford, Amazing Home Care also named HUB as a defendant and referred to it as one of the "Oxford Defendants". However, not only does Amazing Home Care failto allege that HUB is a successor to Oxford, but even if such an allegation had been made, HUB would not be liable under a theory of successor liability since itpurchased only assets from Oxford and expressly declined to assume any liabilities incurred prior to the date of the asset purchase. HUB therefore seeks an Order dismissing allclaims against it. {03246233DOCX /) 2 of 7 FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018 ARGUMENT POINT I PLAINTIFF'S CLAIMS AGAINST HUB MUST BE DISMISSED BECAUSE THEY FAIL TO STATE A CAUSE OF ACTION UPON WHICH RELIEF CAN BE GRANTED. Pursuant to CPLR § 3211(a)(7), "[a] party may move for judgment dismissing one or more causes of action asserted against [it]on the ground that the pleading fails to state a cause of action." CPLR § 3211(a)(7) (McKinney 2008). In such scenarios, the Court must determine whether, accepting as true the factual averments in the Complaint and affording the plaintiff the benefit of all favorable inferences which may be drawn therefrom, the plaintiff "can succeed stated." upon any reasonable view of the facts Lewis v. Drake, 295 A.D.2d 482, 744 N.Y.S.2d 856 (2d Dep't 2002); see also People v. New York City Transit Auth., 59 N.Y.2d 343, 465 N.Y.S.2d 502 (1983); Blumenreich v. N. Shore Health Sys., 287 A.D.2d 529, 731 N.Y.S.2d 638 (2d Dep't 2001); TKO Fleet Enters. v. Elite Limousine Plus, Inc., 286 A.D.2d 436, 729 N.Y.S.2d 193 (2d Dep't 2001). The court does not, however, grant such consideration when the plaintiff's allegations consist of bare legal conclusions or are factual claims inherently incredible or flatly contradicted by documentary evidence. See Chemical Bank v. Ettinger, 196 A.D.2d 711, 602 N.Y.S.2d 332 (1st Dep't 1993); Gertier v. Goodgold, 107 A.D.2d 481, 487 N.Y.S.2d 565 (1st Dep't 1985), aff'd, 66 N.Y.2d 946, 498 N.Y.S.2d 779 (1985), citing, Roberts v. Pollack, 92 A.D.2d 440, 461 N.Y.S.2d 272 (1st Dep't 1983). In its Complaint, Amazing Home Care does not even allege, that HUB is a successor to Oxford. Rather, Amazing Home Care's Complaint merely states that "Defendants HUB, Oxford and Schwartz are affiliated and related to each other, and are individually and collectively Defendants." referred to herein as "The OXford See Complaint at $17. Clearly, Amazing Home Care's allegation concerning HUB is nothing but a bare legal conclusion, with no basis in law or {03246233.DOCX /) 3 of 7 FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018 fact. And lumping HUB together with two distinct legal entities rather than making allegations directly against HUB is improper. Even accepting the conclusory allegations that HUB is related or affiliated with Oxford or Schwartz is not a legal basis to impose liability. Accordingly, the . allegations against HUB must be dismissed pursuant to CPLR §3211(a)(7) for failure to state a cause of action. POINT II HUB CANNOT BE HELD LIABLE TO AMAZING HOME CARE BECAUSE IT DID NOT ASSUME LIABILITY FOR OXFORD'S ACTIONS PRIOR TO THE TIME OF THE ASSET PURCHASE AGREEMENT Even ifPlaintiffs had alleged that HUB was a successor to Oxford, their claims against HUB would fail because HUB did not buy stock in Oxford; it merely entered into an Asset Purchase Agreement under which it purchased certain assets while Oxford retained other assets. Moreover, HUB specifically did not assume liability for any actions which occurred prior to the - Plaintiffs' effective date of the Asset Purchase October 1, 2015. Since Complaint specifies that the actions which are the subject of the Complaint occurred "in or around January and February thereto..." 2015, and for a period of time prior (See Complaint at ¶50), HUB cannot be held liable for those actions. Under New York law, the asset purchase agreement itself is viewed as the firstindication of whether or not liabilities are assumed, and, where the agreement does not specifically state that the liabilities are to be assumed, the courts are highly reluctant to make any such assumptions. In Oorah Inc. v. Covista Communication and Birch Telecom. Inc.,2014 N.Y. Misc. LEXIS 4239 (Supt. Ct. N.Y. Cty., Sept. 25, 2014), the court explained that "'[w]hile no precise rule governs the finding of implied liability, the authorities suggest that the conduct or {03246233DOCX / } 4 of 7 FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018 representations relied upon by the party asserting liability must indicate an intention on the part seller.'" Laidlaw- of the buyer to pay the debts of the (Id. at *11, quoting Ladjevardian v. Coggeshall Inc., 431 F. Supp. 834, 839 (S.D.N.Y. 1974)). Because the plaintiff in Oorah had not made a factual pleading as to any conduct or representations by the defendant demonstrating an intention to pay the debts of the seller, and because the assets purchase agreement had specifically disclaimed the defendant's assumption of the seller's liabilities, the court found that the plaintiff had failed to state a claim for successor liability. In the instant matter as well, the express language of the Asset Purchase Agreement, as well as the absence of any allegations by the plaintiff that HUB's conduct or representations demonstrated an intent to assume liabilities incurred by Oxford prior to the date of the Asset Purchase Agreement, clearly demonstrates that there was no assumption of liabilities in connection with the purchase of the EquityComp plan. The Asset Purchase Agreement which HUB entered into effective October 1, 2015 reads, in relevant part: Section 2.3 Assumed Liabilities. Under the terms and subject to the Conditions of this Agreement, at the Effective Time, the Purchaser shall assume and agree to pay, perform and discharge when due the Liabilities arising out of or relating to the ownership of the Purchased Assets by the Purchaser after the Effective Time, in each case only to the extent that such Liabilities (a) firstarise or accrue after the Effective Time and relate to the period from and after the Effective time, (b) do not arise as a result of any action, inaction, error, omission, breach or default by the Seller or any of its Affiliates prior to or as of the Closing, and (c) are not included in the Retained Liabilities or otherwise the responsibility of the Seller pursuant to this Agreement (collectively, the "Assumed Liabilities"). Section 2.4 Retained Liabilities. Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement and regardless of any disclosure by the Seller to the Purchaser, the Seller shall retain and remain responsible for paying, performing and discharging when due, and the Purchaser shall not assume or otherwise be responsible for, all Liabilities of the Seller and its Affiliates other than the Assumed Liabilities (collectively the "Retained Liabilities) including the following: {03246233.DOCX / ) 5 of 7 FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018 (a) All Liabilities arising out of, relating to or in respect of the operation or conduct of the Business or the ownership or use of the Purchased Assets prior to or as of the Effective Time... Asset Purchase Agreement, relevant sections of which are annexed to the Affidavit of William DeVito. Thus, the Asset Purchase Agreement provides documentary evidence that Oxford retained responsibility for all liabilities of the assets prior to the date of the Asset Purchase. Since the facts giving rise to this dispute occurred in January/February of 2015 and the Asset Purchase was not executed until October 1, 2015, some eight months after the purchase of the EquityComp plan, only Oxford would be liable for acts and/or omissions that occurred in connection with the purchase of the Equity/Comp plan. Accordingly, HUB is entitled to dismissal of allclaims pursuant to CPLR § 3211 (a)(1). POINT III THE DISMISSAL SHOULD BE WITH PREJUDICE It iswell established that leave to amend should be denied where the amended complaint would be futile. See, e.g. Saferstein v. Mideast Systems Ltd., 143 A.D.2d 82, 83 (App. Div. 2d Dep't 1988)("Although leave to amend a pleading should be freely granted (see, CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957), the court is not required to permit futile amendments which may lead to needless litigation (see, e.g., General Motors Acceptance Corp. v Shickler. 96 AD2d 926)"). In this case, Plaintiff should not be granted leave to amend because the Complaint is not merely defectively pled. Rather, itis meritless since the documented evidence demonstrates that HUB cannot be liable to the plaintiff under any circumstances. Accordingly, leave to amend should be denied as futile. {03246233DOCX / ] 6 of 7 FILED: NEW YORK COUNTY CLERK 10/17/2018 12:15 PM INDEX NO. 650789/2018 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 10/17/2018 CONCLUSION Plaintiff has failed to identify an iota of evidence to support a finding that HUB has any liability in this action, either individually or as a successor-in-interest. For the reasons detailed above, HUB therefore respectfully requests that the Court issue an Order dismissing, with prejudice, all claims against HUB pursuant to CPLR §§321l(a)(1) and (a)(7). Dated: New York, New York ., October 17, 2018 Abraham E. Havkins, Esq. Anita S. Cohen, Esq. Havkins, Rosenfeld, Ritzert & Varriale, LLP Attorneys for Defendant HUB International Northeast Limited 6th 1 Battery Park Plaza, flOOr New York, New York 10004 {03246233.DOCX/ } 7 of 7