Preview
FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASAULTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,
Assigned to: Hon. Carl. J. Landicino
v.
NOTICE OF MOTION
EASTERN FRUIT & VEGETABLES INC.
Defendant.
PLEASE TAKE NOTICE, that upon the papers annexed hereto, including the
Affirmation of Debra M. Krebs, dated October 19, 2020, the Affirmation of Debra M. Krebs
showing Good Faith in Compliance with Rule 202.7, dated October 19, 2020, and the exhibits
annexed to each, the undersigned will move this Court in the Central Compliance Part (CCP) in
room 930 of the New York Supreme Court, Kings County courthouse located at 360 Adams
Street, Brooklyn, New York, on November 4, 2020 at 10:00 A.M. in the forenoon of that day, or
as soon thereafter as counsel may be heard, for an order (a) pursuant to CPLR 3126 striking
Defendant's Answer based upon Defendant's failure to properly and/or timely respond to
Plaintiff's discovery demands, as required by this Court's Preliminary Conference Order; and/or
(b) pursuant to CPLR 3126 precluding Defendant from denying and/or producing evidence
and/or testimony contesting liability for the premiums sought herein and the amount of
premiums and/or other damages sought in this lawsuit in light of Defendant's failure to respond
to Atlantic Casualty's discovery demands; and/or (c) pursuant to CPLR 3124, compelling
Defendant to provide full and complete responses to Atlantic Casualty's discovery demands and
interrogatories; and (d) pursuant to CPLR 3123 either deeming Defendant to have admitted the
allegations contained in Atlantic Casualty's Notice to Admit, in light of Defendant's failure to
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NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021
respond or compelEng Defendant to respond to the same; and (3) granting Atlantic Casualty such
other and further relief as this Court deems just, eqztable and proper.
The above-entitled action is for breach of contract based upon Eastern Fruit's failure to
pay insurance premiums due and owing to Atlantic Casualty.
PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering
affidavits and cross-motions (with supporting papers), if any, are required to be served at least
seven (7) days prior to the return date of this motion.
Dated: White Plains, New York
October 19, 2020
K idel,Wel on & Cunn ngham, LLP
By
Debra M. e s, Esq.
Plaintiff
Atlantic Casualty Insurance Co.
925 Westchester Avenue, Suite 400
White Plains, New York 10604
Tel: (914) 948-7000
Fax: (914) 948-7010
TO: L. Blake Morris, Esq.
L. Blake Morris & Associates
Attorneys for Defendant
Eastern Fruit & Vegetables, Inc.
1214 Cortelyou Road
Brooklyn, New York 11218
Tel: (718) 826-8401
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NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASAULTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,
Assigned to: Hon. Carl. J. Landicino
v.
GOOD FAITH AFFIRMATION IN
EASTERN FRUIT & VEGETABLES INC. SUPPORT OF MOTION
Defendant.
DEBRA M. KREBS, ESQ., an attorney duly admitted to practice law in the Courts of
the State of New York, and a partner in the law firm Keidel, Weldon & Cunningham, LLP,
counsel for Plaintiff, Atlantic Casualty Insurance Company ("Atlantic Casualty"), hereby affirms
the following under penalties of perjury:
1. I submit this affirmation pursuant to NYCRR 202.7(c) to demonstrate the good
faith attempts that my office has made to secure the disclosure at issue from Defendant, Eastern
Fruit & Vegetables Inc. ("Defendant").
2. On October 28, 2019, Atlantic Casualty filed and served its First Set of
Interrogatories, First Notice for Discovery and Inspection and Omnibus Demands on Defendant.
Affirmation of Debra M. Krebs, Esq. ("DMK Affirmationl"), Exhibits C, D and E, respectively.
3. On January 13, 2020, the court entered a Preliminary Conference Order directing
Defendant to respond to Atlantic Casualty's demands within 30 days of the date of the order.
See, Preliminary Conference Order, DMK Affirmation, Exhibit F.
4. On February 7, 2020, Defendant filed and served purported responses to Atlantic
Casualty's Interrogatories and Notice for Discovery and Inspection. See, Responses, Exhibits G
1 in affirmation Affirmation of in of
The exhibitsreferenced this are attached to the Debra M. Krebs, Esq. support
the within motion.
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NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021
and H, respectively. There has been no response to Atlantic Casualty's Omnibus Demands to
date.
5. On March 10, 2020, the undersigned sent a letter to counsel for Defendant
addressing the deficiencies in its responses in detail. See, March 10, 2020 Letter, Exhibit I.
6. On March 11, 2020, Atlantic Casualty served and filed its Second Notice for
Discovery and Inspection. See, Second Notice for Discovery and Inspection, DMK Affirmation,
Exhibit J.
7. On April 1, 2020, after continued silence from counsel for Defendant, the
undersigned sent an email to counsel, following up on the deficiency letter. See, April 1, 2020
Email, Exhibit M at p. 3. The undersigned also called counsel several times during these
months and left several voicemails regarding this issue.
8. Not having heard back from Defendant's counsel, given the current health crisis, I
worried that he might have fallen ill. I separately reached out to him to confirm that he isalright.
By email dated April 10, 2020, Defendant's counsel confirmed that he iswell. See, Emails dated
April 2, 2020 and April 10, 2020, Exhibit M at p. 7. However, on April 16, 2020 I again tried to
reach out to him by telephone and email to discuss this case, including the outstanding discovery,
and once again received no response. See, Email dated April 16, 2020, Exhibit M at p. 8.
9. In March, the undersigned had served and filed a Notice to Admit. When I went
to follow up for the response in April, I noticed that there were minor errors in the original
notice. As a result, on April 17, 2020 I served Defendant's counsel with an Amended First
Notice to Admit to Eastern Fruit & Vegetables (the "Amended Notice to Admit"). See,
Amended Notice to Admit with cover email, Exhibit K.
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10. A compliance conference had been scheduled for April 20, 2020, but was
cancelled in light of the health crisis.
11. On May 4, 2020, I had stillnot heard back from Defendant's counsel regarding
my efforts to discuss the outstanding discovery responses and, as a result, wrote to him again to
discuss this issue. See, May 4, 2020 Email, Exhibit M at p. 2.
12. On May 14, 2020 Defendant filed and served a document entitled Response to
"First"
Amended Notice to Admit (the "Objection") which did not respond to the Notice, but
stated a general objection. See, Objection, Exhibit L.
Morris'
13. On May 18, 2020 I received a telephone call from Mr. law clerk, Dmytro
Usyk. He initially advised me that Mr. Morris is not willing to discuss settlement of this matter.
I advised him that this was not why I had been calling and writing to Mr. Morris. I advised Mr.
Usyk that there are outstanding discovery demand and that I was looking to get a date for those
responses and to discuss the issues we have with the responses that were served. Mr. Usyk
advised me that Mr. Morris is not doing any work during the pandemic and would not speak with
me.
14. In light of our inability to obtain any cooperation from Defendant's counsel and
since the courts had reopened, I attempted to contact CCP to find out how to schedule a
conference to get discovery moving in the case. Unfortunately, I was unable to reach CCP.
judge2
15. As a result, on June 2, 2020, the undersigned wrote to the assigned
requesting a conference on the discovery issues. See, June 2, 2020 Letter, Exhibit T.
2 system Joseph in I
The court variously listedJustice Landicino and Justice as theassigned judge thismatter. called
the clerk'soffice and spoke with two different people who were both unclear as towhich judge was assigned to the
matter. As a result,
the initial
letterfiled was addressed to JusticeJoseph, who was lastlisted as being assigned to
thismatter. The was
filing rejected as we were advised the matter isassigned to Justice Landicino. As a result,
the
letterwas revised and submitted to JusticeLandicino.
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16. Although fully aware that I am the primary attorney on this case, on
July 31, 2020, counsel for Defendant contacted my partner to request a courtesy in connection
with the pending motions. Since my partner is not as familiar with this matter, he included me in
the call. I responded to the inquiries posed and attempted to discuss the discovery issues, but
counsel for Defendant hung up. I called him back to discuss the discovery issues. Counsel for
stipulation."
Defendant advised that "these things are usually resolved by I suggested we enter
time."
into a stipulation, but he said that "now is not the I asked him when we would be able to
stipulation."
do this and he just kept telling me that "these things get resolved by
17. In light of this, on July 31, 2020 I wrote to counsel for Defendant providing a
proposed stipulation. See, July 31, 2020 Email, Exhibit M at p. 1; see also Proposed Stipulation,
Exhibit M at pp. 5-6. As of the date of this motion, the stipulation has not been executed or
returned to Atlantic Casualty and there have not been any further responses from Defendant.
18. In light of the above, it isclear that the undersigned has made multiple good faith
efforts to resolve these issues without the need for motion practice, but these efforts have been
unsuccessful.
19. It is, therefore, respectfully requested that, for the reasons discussed in the
accompanying papers, this Court grant the within motion, together with such other and further
relief as to this Court may seem just, proper and equitable.
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Dated: White Plains, New York
October 19, 2020
Keidel, Weldon & Cü=ñiñgham, LLP
B .
Debra . Kr , sq.
rne s o aintiff
Atlantic Casualty Insurance Co.
925 Westchester Avenue, Suite 400
White Plains, New York 10604
Tel: (914) 948-7000
Fax: (914) 948-7010
TO: L. Blake Morris, Esq.
L. Blake Morris & Associates
Attorneys for Defendant
Eastern Fruit & Vegetables, Inc.
1214 Cortelyou Road
Brooklyn, New York 11218
Tel: (718) 826-8401
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NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASAULTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,
Assigned to:Hon. Carl. J. Landicino
v.
AFFIRMATION IN
EASTERN FRUIT & VEGETABLES INC. SUPPORT OF MOTION
Defendant.
DEBRA M. KREBS, ESQ., an attorney duly admitted to practice law in the courts of the
State of New York, and a partner in the law firm Keidel, Weldon & Cunningham, LLP, counsel
for Plaintiff, Atlantic Casualty Insurance Company ("Atlantic Casualty"), hereby affirms the
following under penalties of perjury:
1. As counsel for Atlantic Casualty, I am familiar with the facts and circumstances
set forth in this Affirmation.
2. This Affirmation is respectfully submitted in support of Atlantic Casualty's
motion seeking an order: (a) pursuant to CPLR 3126 striking Defendant's Answer based upon
Defendant's failure to properly and/or timely respond to Plaintiff's discovery demands, as
required by this Court's Preliminary Conference Order; and/or (b) pursuant to CPLR 3126
precluding Defendant from denying and/or producing evidence and/or testimony contesting
liability for the premiums sought herein and the amount of premiums and/or other damages
sought in this lawsuit in light of Defendant's failure to respond to Atlantic Casualty's discovery
demands; and/or (c) pursuant to CPLR 3124, compelling Defendant to provide full and complete
responses to Atlantic Casualty's discovery demands and interrogatories; and (d) pursuant to
CPLR 3123 either deeming Defendant to have admitted the allegations contained in Atlantic
Casualty's Notice to Admit, in light of Defendant's failure to respond or compelling Defendant
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to respond to the same, and granting such other and further relief as this Court deems just,
equitable and proper.
SUMMARY
3. In this action, Atlantic Casualty seeks to recover earned premiums, which
Defendant has failed and/or refused to pay to Atlantic Casualty in connection with insurance
coverage Atlantic Casualty provided to Defendant. See, Complaint, Exhibit A [NYSCEF Doc.
No. 1].
4. As discussed below, Defendant has failed and/or refused to respond or to properly
respond to Atlantic Casualty's discovery demands, interrogatories and notice to admit in this
matter, requiring the present motion.
RELEVANT PROCEDURAL HISTORY
5. Atlantic Casualty commenced this action on May 24, 2018. See, Summons and
Complaint, Exhibit A, [NYSCEF Doc. No. 1]. Defendant filed an Answer on June 29, 2018.
See, Answer, Exhibit B, [NYSCEF Doc. No. 3].
6. After a round of early dispositive motions were resolved, on October 28, 2019,
Atlantic Casualty served its First Set of Interrogatories, First Notice for Discovery and Inspection
and Omnibus Demands on Defendant. See, Demands, Exhibits C, D and E, respectively;
[NYSCEF Doc. Nos. 62-67].
7. On December 5, 2019, Atlantic Casualty filed a Request for Preliminary
Conference, as we stillhad not received any discovery responses at that time.
8. On January 13, 2020, a Preliminary Conference was held. During the conference,
Defendant argued to the Court that discovery should be stayed as Defendant had just filed a
second motion to dismiss. The Court rejected Defendant's argument and directed that Defendant
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respond to Atlantic Casualty's demands within 30 days of the date of the order. See, Preliminary
Conference Order, Exhibit F, [NYSCEF Doc. No. 79].
9. On February 7, 2020, Defendant filed and served purported responses to Atlantic
Casualty's Interrogatories and Notice for Discovery and Inspection. See, Exhibits G and H,
respectively; [NYSCEF, Doc. Nos. 81 and 82]. As discussed in our correspondence to
Defendant's counsel dated March 10, 2020 (Exhibit I), Defendant's purported responses did not
respond at all to Atlantic Casualty's substantive requests.
10. On March 11, 2020, Atlantic Casualty served its Second Notice for Discovery and
Inspection, which, as discussed in more detail below, more specifically requested the same
documents sought in paragraphs 28 and 29 of Atlantic Casualty's First Notice for Discovery and
Inspection. See, Second Notice, Exhibit J; [NYSCEF, Doc. No. 83].
requests,1
11. Despite a court order and several we have been unable to obtain any
responses to Atlantic Casualty's Omnibus Demands or Atlantic Casualty's Second Notice for
Discovery and Inspection and have been unable to obtain any reasonable responses to Atlantic
Casualty's First Notice for Discovery and Inspection or First Set of Interrogatories.
12. On March 17, 2020, Atlantic Casualty served Defendant with an Amended Notice
to Admit. See, Notice to Admit, Exhibit K; NYSCEF, Doc. No. 84]. Defendant did not respond
to the Notice within the required period of time, but instead, after the deadline, served a general
objection. See, Objection, Exhibit L; [NYSCEF, Doc. No. 85].
As discussed in the accompanying affirmation, the undersigned telephoned Defendant's
counsel and wrote to him a number of times with no response and even spoke with him once but
Defendants'
was unable to obtain his cooperation. Copies of the emails to counsel attempting to
obtain his cooperation are attached collectively as Exhibit M. A copy of our letter to the Court
requesting a conference is attached as Exhibit T.
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ATLANTIC CASUALTY'S GOOD FAITH ATTEMPTS TO RESOLVE THIS DISPUTE
13. Atlantic Casualty made several attempts to obtain full and proper discovery
responses to its demands, to no avail.
14. Atlantic Casualty's good faith attempts to resolve these discovery issues are
outlined in the accompanying good faith affirmation. That affirmation satisfies the mandates of
NYCRR 202.7(c).
ARGUMENT
A. Atlantic Casualty is Entitled to Relief Pursuant to CPLR 3126
15. CPLR 3126 states in relevant part:
If any party ... refuses to obey an order for disclosure or wilfully fails to disclose
information which the court finds ought to have been disclosed pursuant to this
article, the court may make such orders with regard to the failure or refusal as are
just, among them:
1. an order that the issues to which the information is relevant shall be
deemed resolved for purposes of the action in accordance with the claims
of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing
designated claims or defenses, from producing in evidence designated
things or items of testimony, or from introducing any evidence of the
physical, mental or blood condition sought to be determined, or from
using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or any part
thereof, or rendering a judgment by default against the disobedient party.
16. The New York Court of Appeals has "underscore[d] that compliance with a
disclosure order requires both a timely response and one that evinces a good-faith effort to
meaningfully."
address the requests Kihl v Pfeffer, 94 NY2d 118, 123 (1999). "when a party
fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, itis
to"
well within the Trial Judge's discretion strike a party's pleading. Id. at 122. The Court of
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Appeals has explained that "[i]f the credibility of court orders and the integrity of our judicial
system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the
Legislature, recognizing the need for courts to be able to command compliance with their
disclosure directives, has specifically provided that a 'court may make such orders ... as are
just,'...."
Id. at 123.
17. This Court issued a Preliminary Conference Order on January 1, 2020 directing
that Defendant respond to Atlantic Casualty's Omnibus Demands, Notice for Discovery and
Inspection and Interrogatories within thirty days (i.e. by January 31, 2020). Defendant did not
respond at all within that deadline. Defendant has responded to two out of the three discovery
"responses"
demands pending at that time and the which Defendant did provide evidence a clear
effort to avoid providing any substantive responses at all, in violation of this Court's order.
1. Defendant Has Not Provided Any Response to Atlantic
Casualty's Omnibus Demands
18. Defendant has failed to serve any response at all to Atlantic Casualty's served on
October 28, 2019. This is a clear violation of the Court's Preliminary Conference Order and, as
a result, Atlantic Casualty is entitled to remedy under CPLR 3126. At the very least, Atlantic
Casualty is entitled to an order pursuant to CPLR 3124 compelling Defendant to respond to these
demands.
2. Defendant Has Failed to Make Any Good Faith Effort to
Meaningfully Address the Demands in Atlantic Casualty's
First Notice for Discovery and Inspection
19. After expiration of the deadline for Defendant to respond to Atlantic Casualty's
First Notice for Discovery and Inspection, Defendant served a response which states:
[1.] For document demands 1-14, 16, 17, 18, 19, 23, 28, 29, and 30 see NY St
Cts Electronic Filing [NYSCEF] Does. No. 12, 13, 14, 76, 77, and 78.
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[2.] For document demand 15, request denied as in [sic] the request of [sic]
information is neither relevant nor material to the instant case and requires
confidential and privileged information.
* * *
[4] For document demands 24-27, not applicable.
G.2
Exhibit
20. In other words, Defendant has not produced a single document in response to
Atlantic Casualty's discovery demand.
21. A printout of the docket is attached as Exhibit N. As the Court can see, NYSCEF
Doc. Nos. 12 through 14, identified in Defendant's response, are documents which were attached
to Atlantic Casualty's motion for judgment - those documents are the Audit
summary Summary,
Audit Endorsement and policy endorsements, all of which come from Atlantic Casualty's files.
NYSCEF Doc. No. 77 referenced in Defendant's response is an email from Morstan General
Agency (the surplus lines broker involved in placing the subject insurance policy) along with
copies of documents from Morstan's files. NYSCEF Doc. Nos. 76 and 78 are the subpoena
requesting documents from Morstan and the cover letter from Morstan enclosing the documents.
22. The fact that these documents were identified as Defendant's response to the
following demands demonstrates that the responses were not served in good faith to
meaningfully address Atlantic Casualty's discovery demands:
[6.] Your [i.e.Defendant's] complete filewith respect to the Policies.
[7.] All Documents in Your possession relating to the Policies.
[8.] Your complete filewith respect to the Audit.
[9.] All Documents in Your possession relating to the Audit.
2
We have omitted response paragraph 3 because it addresses requests concerning Defendant's
counter-claims, which have been dismissed.
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[10.] All Documents provided by You to Overland Solutions and/or any other
person or entity in connection with the Audit.
[11.] Those Documents evidencing any Correspondence or Communications,
including the correspondence and/or communications themselves, between You
and any of the following people or entities:
a. Atlantic Casualty
b. Morstan
c. Andreoli
d. Overland Solutions
[12.] Those Documents evidencing any correspondence or communications,
including the Correspondence and/or Communications themselves, relating to
and/or referencing:
a. The Policies
b. The Audit
[13.] All bills,invoices and/or other documents requesting payment, which You
received in connection with the Policies and/or the Audit.
[14.] All Documents evidencing any payment by You for premiums owed in
connection with the Policies and/or the Audit.
* * *
[16.] All Documents evidencing Eastern Fruit & Vegetables, Inc.'s gross
receipts during the period from April 17, 2014 to October 3, 2017.
* * *
[28.] The policy, including alldeclarations, forms and endorsements, referenced
in paragraph 8 of the Affidavit in Opposition to Motion for Summary Judgment of
Asif Jhangir, dated October 24, 2018.
[29.] All applications, quotes and binders submitted, provided and/or received
in connection with the policy, referenced in paragraph 8 of the Affidavit in
Opposition to Motion for Summary Judgment of Asif Jhangir, dated October 24,
2018.
[30.] Documents evidencing that "for six years, ending with the cancellation of
[Eastern Fruit's] commercial general liability insurance policy on or about July
2017, the defendants maintained commercial general liability insurance provided
Casualty],"
by [Atlantic as alleged in paragraph 3 of the Affidavit in Opposition
to Motion for Summary Judgment of Asif Jhangir, dated October 24, 2018. This
demand specifically includes, but is not limited all policies and/or policy
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documents, all quotations, all binders, all bills or invoices relating to any policy
the referenced in this paragraph and/or through which You claim Eastern Fruit
maintained commercial general liability insurance provided by Atlantic Casualty
during this period.
Exhibit D.
23. Since each of these demands requests documents from Defendant's files, and
Defendant's responses only point to documents from Atlantic Casualty's files and from the files
of the surplus lines broker involved in placing the subject insurance policy, it is clear that
Defendant's responses do not evince any good faith effort on the part of Defendant to respond to
these demands.
24. As noted above, paragraph 2 of Defendant's response objects to paragraph 15 of
Atlantic Casualty's demand. That demand seeks "[c]opies of all tax returns filed by or on behalf
2017."
of Eastern Fruit & Vegetables, Inc. for tax years 2014, 2015, 2016 and Exhibit D at115.
Defendant's objection claims that the information sought is "neither relevant nor material to the
information."
instant case and requires confidential and privileged Exhibit G at12.
25. It should first be noted that, although Defendant asserts a claim of privilege,
Defendant fails to identify what privilege is claimed or to explain how tax returns are subject to a
privilege.
26. To the extent Defendant claims the documents are confidential, this would simply
mean that the documents (which, as discussed below, are material and relevant) should be
produced pursuant to a confidentiality order.
27. As to Defendant's argument that the documents are not relevant or material, that
is incorrect. Attached as Exhibit O is an Affidavit of Suzanne Parrish previously filed in this
matter in which Ms. Parrish explains that the outstanding insurance premiums which are the
subject of this lawsuit were calculated based upon an audit of Defendant's gross receipts earned
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during the period of time when the two Atlantic Casualty policies at is
Preview
FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ATLANTIC CASAULTY INSURANCE COMPANY, Index No.: 510798/2018 Plaintiff, Assigned to: Hon. Carl. J. Landicino v. NOTICE OF MOTION EASTERN FRUIT & VEGETABLES INC. Defendant. PLEASE TAKE NOTICE, that upon the papers annexed hereto, including the Affirmation of Debra M. Krebs, dated October 19, 2020, the Affirmation of Debra M. Krebs showing Good Faith in Compliance with Rule 202.7, dated October 19, 2020, and the exhibits annexed to each, the undersigned will move this Court in the Central Compliance Part (CCP) in room 930 of the New York Supreme Court, Kings County courthouse located at 360 Adams Street, Brooklyn, New York, on November 4, 2020 at 10:00 A.M. in the forenoon of that day, or as soon thereafter as counsel may be heard, for an order (a) pursuant to CPLR 3126 striking Defendant's Answer based upon Defendant's failure to properly and/or timely respond to Plaintiff's discovery demands, as required by this Court's Preliminary Conference Order; and/or (b) pursuant to CPLR 3126 precluding Defendant from denying and/or producing evidence and/or testimony contesting liability for the premiums sought herein and the amount of premiums and/or other damages sought in this lawsuit in light of Defendant's failure to respond to Atlantic Casualty's discovery demands; and/or (c) pursuant to CPLR 3124, compelling Defendant to provide full and complete responses to Atlantic Casualty's discovery demands and interrogatories; and (d) pursuant to CPLR 3123 either deeming Defendant to have admitted the allegations contained in Atlantic Casualty's Notice to Admit, in light of Defendant's failure to 1 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 respond or compelEng Defendant to respond to the same; and (3) granting Atlantic Casualty such other and further relief as this Court deems just, eqztable and proper. The above-entitled action is for breach of contract based upon Eastern Fruit's failure to pay insurance premiums due and owing to Atlantic Casualty. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering affidavits and cross-motions (with supporting papers), if any, are required to be served at least seven (7) days prior to the return date of this motion. Dated: White Plains, New York October 19, 2020 K idel,Wel on & Cunn ngham, LLP By Debra M. e s, Esq. Plaintiff Atlantic Casualty Insurance Co. 925 Westchester Avenue, Suite 400 White Plains, New York 10604 Tel: (914) 948-7000 Fax: (914) 948-7010 TO: L. Blake Morris, Esq. L. Blake Morris & Associates Attorneys for Defendant Eastern Fruit & Vegetables, Inc. 1214 Cortelyou Road Brooklyn, New York 11218 Tel: (718) 826-8401 2 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ATLANTIC CASAULTY INSURANCE COMPANY, Index No.: 510798/2018 Plaintiff, Assigned to: Hon. Carl. J. Landicino v. GOOD FAITH AFFIRMATION IN EASTERN FRUIT & VEGETABLES INC. SUPPORT OF MOTION Defendant. DEBRA M. KREBS, ESQ., an attorney duly admitted to practice law in the Courts of the State of New York, and a partner in the law firm Keidel, Weldon & Cunningham, LLP, counsel for Plaintiff, Atlantic Casualty Insurance Company ("Atlantic Casualty"), hereby affirms the following under penalties of perjury: 1. I submit this affirmation pursuant to NYCRR 202.7(c) to demonstrate the good faith attempts that my office has made to secure the disclosure at issue from Defendant, Eastern Fruit & Vegetables Inc. ("Defendant"). 2. On October 28, 2019, Atlantic Casualty filed and served its First Set of Interrogatories, First Notice for Discovery and Inspection and Omnibus Demands on Defendant. Affirmation of Debra M. Krebs, Esq. ("DMK Affirmationl"), Exhibits C, D and E, respectively. 3. On January 13, 2020, the court entered a Preliminary Conference Order directing Defendant to respond to Atlantic Casualty's demands within 30 days of the date of the order. See, Preliminary Conference Order, DMK Affirmation, Exhibit F. 4. On February 7, 2020, Defendant filed and served purported responses to Atlantic Casualty's Interrogatories and Notice for Discovery and Inspection. See, Responses, Exhibits G 1 in affirmation Affirmation of in of The exhibitsreferenced this are attached to the Debra M. Krebs, Esq. support the within motion. 1 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 and H, respectively. There has been no response to Atlantic Casualty's Omnibus Demands to date. 5. On March 10, 2020, the undersigned sent a letter to counsel for Defendant addressing the deficiencies in its responses in detail. See, March 10, 2020 Letter, Exhibit I. 6. On March 11, 2020, Atlantic Casualty served and filed its Second Notice for Discovery and Inspection. See, Second Notice for Discovery and Inspection, DMK Affirmation, Exhibit J. 7. On April 1, 2020, after continued silence from counsel for Defendant, the undersigned sent an email to counsel, following up on the deficiency letter. See, April 1, 2020 Email, Exhibit M at p. 3. The undersigned also called counsel several times during these months and left several voicemails regarding this issue. 8. Not having heard back from Defendant's counsel, given the current health crisis, I worried that he might have fallen ill. I separately reached out to him to confirm that he isalright. By email dated April 10, 2020, Defendant's counsel confirmed that he iswell. See, Emails dated April 2, 2020 and April 10, 2020, Exhibit M at p. 7. However, on April 16, 2020 I again tried to reach out to him by telephone and email to discuss this case, including the outstanding discovery, and once again received no response. See, Email dated April 16, 2020, Exhibit M at p. 8. 9. In March, the undersigned had served and filed a Notice to Admit. When I went to follow up for the response in April, I noticed that there were minor errors in the original notice. As a result, on April 17, 2020 I served Defendant's counsel with an Amended First Notice to Admit to Eastern Fruit & Vegetables (the "Amended Notice to Admit"). See, Amended Notice to Admit with cover email, Exhibit K. 2 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 10. A compliance conference had been scheduled for April 20, 2020, but was cancelled in light of the health crisis. 11. On May 4, 2020, I had stillnot heard back from Defendant's counsel regarding my efforts to discuss the outstanding discovery responses and, as a result, wrote to him again to discuss this issue. See, May 4, 2020 Email, Exhibit M at p. 2. 12. On May 14, 2020 Defendant filed and served a document entitled Response to "First" Amended Notice to Admit (the "Objection") which did not respond to the Notice, but stated a general objection. See, Objection, Exhibit L. Morris' 13. On May 18, 2020 I received a telephone call from Mr. law clerk, Dmytro Usyk. He initially advised me that Mr. Morris is not willing to discuss settlement of this matter. I advised him that this was not why I had been calling and writing to Mr. Morris. I advised Mr. Usyk that there are outstanding discovery demand and that I was looking to get a date for those responses and to discuss the issues we have with the responses that were served. Mr. Usyk advised me that Mr. Morris is not doing any work during the pandemic and would not speak with me. 14. In light of our inability to obtain any cooperation from Defendant's counsel and since the courts had reopened, I attempted to contact CCP to find out how to schedule a conference to get discovery moving in the case. Unfortunately, I was unable to reach CCP. judge2 15. As a result, on June 2, 2020, the undersigned wrote to the assigned requesting a conference on the discovery issues. See, June 2, 2020 Letter, Exhibit T. 2 system Joseph in I The court variously listedJustice Landicino and Justice as theassigned judge thismatter. called the clerk'soffice and spoke with two different people who were both unclear as towhich judge was assigned to the matter. As a result, the initial letterfiled was addressed to JusticeJoseph, who was lastlisted as being assigned to thismatter. The was filing rejected as we were advised the matter isassigned to Justice Landicino. As a result, the letterwas revised and submitted to JusticeLandicino. 3 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 16. Although fully aware that I am the primary attorney on this case, on July 31, 2020, counsel for Defendant contacted my partner to request a courtesy in connection with the pending motions. Since my partner is not as familiar with this matter, he included me in the call. I responded to the inquiries posed and attempted to discuss the discovery issues, but counsel for Defendant hung up. I called him back to discuss the discovery issues. Counsel for stipulation." Defendant advised that "these things are usually resolved by I suggested we enter time." into a stipulation, but he said that "now is not the I asked him when we would be able to stipulation." do this and he just kept telling me that "these things get resolved by 17. In light of this, on July 31, 2020 I wrote to counsel for Defendant providing a proposed stipulation. See, July 31, 2020 Email, Exhibit M at p. 1; see also Proposed Stipulation, Exhibit M at pp. 5-6. As of the date of this motion, the stipulation has not been executed or returned to Atlantic Casualty and there have not been any further responses from Defendant. 18. In light of the above, it isclear that the undersigned has made multiple good faith efforts to resolve these issues without the need for motion practice, but these efforts have been unsuccessful. 19. It is, therefore, respectfully requested that, for the reasons discussed in the accompanying papers, this Court grant the within motion, together with such other and further relief as to this Court may seem just, proper and equitable. 4 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 Dated: White Plains, New York October 19, 2020 Keidel, Weldon & Cü=ñiñgham, LLP B . Debra . Kr , sq. rne s o aintiff Atlantic Casualty Insurance Co. 925 Westchester Avenue, Suite 400 White Plains, New York 10604 Tel: (914) 948-7000 Fax: (914) 948-7010 TO: L. Blake Morris, Esq. L. Blake Morris & Associates Attorneys for Defendant Eastern Fruit & Vegetables, Inc. 1214 Cortelyou Road Brooklyn, New York 11218 Tel: (718) 826-8401 5 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ATLANTIC CASAULTY INSURANCE COMPANY, Index No.: 510798/2018 Plaintiff, Assigned to:Hon. Carl. J. Landicino v. AFFIRMATION IN EASTERN FRUIT & VEGETABLES INC. SUPPORT OF MOTION Defendant. DEBRA M. KREBS, ESQ., an attorney duly admitted to practice law in the courts of the State of New York, and a partner in the law firm Keidel, Weldon & Cunningham, LLP, counsel for Plaintiff, Atlantic Casualty Insurance Company ("Atlantic Casualty"), hereby affirms the following under penalties of perjury: 1. As counsel for Atlantic Casualty, I am familiar with the facts and circumstances set forth in this Affirmation. 2. This Affirmation is respectfully submitted in support of Atlantic Casualty's motion seeking an order: (a) pursuant to CPLR 3126 striking Defendant's Answer based upon Defendant's failure to properly and/or timely respond to Plaintiff's discovery demands, as required by this Court's Preliminary Conference Order; and/or (b) pursuant to CPLR 3126 precluding Defendant from denying and/or producing evidence and/or testimony contesting liability for the premiums sought herein and the amount of premiums and/or other damages sought in this lawsuit in light of Defendant's failure to respond to Atlantic Casualty's discovery demands; and/or (c) pursuant to CPLR 3124, compelling Defendant to provide full and complete responses to Atlantic Casualty's discovery demands and interrogatories; and (d) pursuant to CPLR 3123 either deeming Defendant to have admitted the allegations contained in Atlantic Casualty's Notice to Admit, in light of Defendant's failure to respond or compelling Defendant 1 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 to respond to the same, and granting such other and further relief as this Court deems just, equitable and proper. SUMMARY 3. In this action, Atlantic Casualty seeks to recover earned premiums, which Defendant has failed and/or refused to pay to Atlantic Casualty in connection with insurance coverage Atlantic Casualty provided to Defendant. See, Complaint, Exhibit A [NYSCEF Doc. No. 1]. 4. As discussed below, Defendant has failed and/or refused to respond or to properly respond to Atlantic Casualty's discovery demands, interrogatories and notice to admit in this matter, requiring the present motion. RELEVANT PROCEDURAL HISTORY 5. Atlantic Casualty commenced this action on May 24, 2018. See, Summons and Complaint, Exhibit A, [NYSCEF Doc. No. 1]. Defendant filed an Answer on June 29, 2018. See, Answer, Exhibit B, [NYSCEF Doc. No. 3]. 6. After a round of early dispositive motions were resolved, on October 28, 2019, Atlantic Casualty served its First Set of Interrogatories, First Notice for Discovery and Inspection and Omnibus Demands on Defendant. See, Demands, Exhibits C, D and E, respectively; [NYSCEF Doc. Nos. 62-67]. 7. On December 5, 2019, Atlantic Casualty filed a Request for Preliminary Conference, as we stillhad not received any discovery responses at that time. 8. On January 13, 2020, a Preliminary Conference was held. During the conference, Defendant argued to the Court that discovery should be stayed as Defendant had just filed a second motion to dismiss. The Court rejected Defendant's argument and directed that Defendant 2 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 respond to Atlantic Casualty's demands within 30 days of the date of the order. See, Preliminary Conference Order, Exhibit F, [NYSCEF Doc. No. 79]. 9. On February 7, 2020, Defendant filed and served purported responses to Atlantic Casualty's Interrogatories and Notice for Discovery and Inspection. See, Exhibits G and H, respectively; [NYSCEF, Doc. Nos. 81 and 82]. As discussed in our correspondence to Defendant's counsel dated March 10, 2020 (Exhibit I), Defendant's purported responses did not respond at all to Atlantic Casualty's substantive requests. 10. On March 11, 2020, Atlantic Casualty served its Second Notice for Discovery and Inspection, which, as discussed in more detail below, more specifically requested the same documents sought in paragraphs 28 and 29 of Atlantic Casualty's First Notice for Discovery and Inspection. See, Second Notice, Exhibit J; [NYSCEF, Doc. No. 83]. requests,1 11. Despite a court order and several we have been unable to obtain any responses to Atlantic Casualty's Omnibus Demands or Atlantic Casualty's Second Notice for Discovery and Inspection and have been unable to obtain any reasonable responses to Atlantic Casualty's First Notice for Discovery and Inspection or First Set of Interrogatories. 12. On March 17, 2020, Atlantic Casualty served Defendant with an Amended Notice to Admit. See, Notice to Admit, Exhibit K; NYSCEF, Doc. No. 84]. Defendant did not respond to the Notice within the required period of time, but instead, after the deadline, served a general objection. See, Objection, Exhibit L; [NYSCEF, Doc. No. 85]. As discussed in the accompanying affirmation, the undersigned telephoned Defendant's counsel and wrote to him a number of times with no response and even spoke with him once but Defendants' was unable to obtain his cooperation. Copies of the emails to counsel attempting to obtain his cooperation are attached collectively as Exhibit M. A copy of our letter to the Court requesting a conference is attached as Exhibit T. 3 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 ATLANTIC CASUALTY'S GOOD FAITH ATTEMPTS TO RESOLVE THIS DISPUTE 13. Atlantic Casualty made several attempts to obtain full and proper discovery responses to its demands, to no avail. 14. Atlantic Casualty's good faith attempts to resolve these discovery issues are outlined in the accompanying good faith affirmation. That affirmation satisfies the mandates of NYCRR 202.7(c). ARGUMENT A. Atlantic Casualty is Entitled to Relief Pursuant to CPLR 3126 15. CPLR 3126 states in relevant part: If any party ... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. 16. The New York Court of Appeals has "underscore[d] that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to meaningfully." address the requests Kihl v Pfeffer, 94 NY2d 118, 123 (1999). "when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, itis to" well within the Trial Judge's discretion strike a party's pleading. Id. at 122. The Court of 4 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 Appeals has explained that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a 'court may make such orders ... as are just,'...." Id. at 123. 17. This Court issued a Preliminary Conference Order on January 1, 2020 directing that Defendant respond to Atlantic Casualty's Omnibus Demands, Notice for Discovery and Inspection and Interrogatories within thirty days (i.e. by January 31, 2020). Defendant did not respond at all within that deadline. Defendant has responded to two out of the three discovery "responses" demands pending at that time and the which Defendant did provide evidence a clear effort to avoid providing any substantive responses at all, in violation of this Court's order. 1. Defendant Has Not Provided Any Response to Atlantic Casualty's Omnibus Demands 18. Defendant has failed to serve any response at all to Atlantic Casualty's served on October 28, 2019. This is a clear violation of the Court's Preliminary Conference Order and, as a result, Atlantic Casualty is entitled to remedy under CPLR 3126. At the very least, Atlantic Casualty is entitled to an order pursuant to CPLR 3124 compelling Defendant to respond to these demands. 2. Defendant Has Failed to Make Any Good Faith Effort to Meaningfully Address the Demands in Atlantic Casualty's First Notice for Discovery and Inspection 19. After expiration of the deadline for Defendant to respond to Atlantic Casualty's First Notice for Discovery and Inspection, Defendant served a response which states: [1.] For document demands 1-14, 16, 17, 18, 19, 23, 28, 29, and 30 see NY St Cts Electronic Filing [NYSCEF] Does. No. 12, 13, 14, 76, 77, and 78. 5 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 [2.] For document demand 15, request denied as in [sic] the request of [sic] information is neither relevant nor material to the instant case and requires confidential and privileged information. * * * [4] For document demands 24-27, not applicable. G.2 Exhibit 20. In other words, Defendant has not produced a single document in response to Atlantic Casualty's discovery demand. 21. A printout of the docket is attached as Exhibit N. As the Court can see, NYSCEF Doc. Nos. 12 through 14, identified in Defendant's response, are documents which were attached to Atlantic Casualty's motion for judgment - those documents are the Audit summary Summary, Audit Endorsement and policy endorsements, all of which come from Atlantic Casualty's files. NYSCEF Doc. No. 77 referenced in Defendant's response is an email from Morstan General Agency (the surplus lines broker involved in placing the subject insurance policy) along with copies of documents from Morstan's files. NYSCEF Doc. Nos. 76 and 78 are the subpoena requesting documents from Morstan and the cover letter from Morstan enclosing the documents. 22. The fact that these documents were identified as Defendant's response to the following demands demonstrates that the responses were not served in good faith to meaningfully address Atlantic Casualty's discovery demands: [6.] Your [i.e.Defendant's] complete filewith respect to the Policies. [7.] All Documents in Your possession relating to the Policies. [8.] Your complete filewith respect to the Audit. [9.] All Documents in Your possession relating to the Audit. 2 We have omitted response paragraph 3 because it addresses requests concerning Defendant's counter-claims, which have been dismissed. 6 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 [10.] All Documents provided by You to Overland Solutions and/or any other person or entity in connection with the Audit. [11.] Those Documents evidencing any Correspondence or Communications, including the correspondence and/or communications themselves, between You and any of the following people or entities: a. Atlantic Casualty b. Morstan c. Andreoli d. Overland Solutions [12.] Those Documents evidencing any correspondence or communications, including the Correspondence and/or Communications themselves, relating to and/or referencing: a. The Policies b. The Audit [13.] All bills,invoices and/or other documents requesting payment, which You received in connection with the Policies and/or the Audit. [14.] All Documents evidencing any payment by You for premiums owed in connection with the Policies and/or the Audit. * * * [16.] All Documents evidencing Eastern Fruit & Vegetables, Inc.'s gross receipts during the period from April 17, 2014 to October 3, 2017. * * * [28.] The policy, including alldeclarations, forms and endorsements, referenced in paragraph 8 of the Affidavit in Opposition to Motion for Summary Judgment of Asif Jhangir, dated October 24, 2018. [29.] All applications, quotes and binders submitted, provided and/or received in connection with the policy, referenced in paragraph 8 of the Affidavit in Opposition to Motion for Summary Judgment of Asif Jhangir, dated October 24, 2018. [30.] Documents evidencing that "for six years, ending with the cancellation of [Eastern Fruit's] commercial general liability insurance policy on or about July 2017, the defendants maintained commercial general liability insurance provided Casualty]," by [Atlantic as alleged in paragraph 3 of the Affidavit in Opposition to Motion for Summary Judgment of Asif Jhangir, dated October 24, 2018. This demand specifically includes, but is not limited all policies and/or policy 7 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 documents, all quotations, all binders, all bills or invoices relating to any policy the referenced in this paragraph and/or through which You claim Eastern Fruit maintained commercial general liability insurance provided by Atlantic Casualty during this period. Exhibit D. 23. Since each of these demands requests documents from Defendant's files, and Defendant's responses only point to documents from Atlantic Casualty's files and from the files of the surplus lines broker involved in placing the subject insurance policy, it is clear that Defendant's responses do not evince any good faith effort on the part of Defendant to respond to these demands. 24. As noted above, paragraph 2 of Defendant's response objects to paragraph 15 of Atlantic Casualty's demand. That demand seeks "[c]opies of all tax returns filed by or on behalf 2017." of Eastern Fruit & Vegetables, Inc. for tax years 2014, 2015, 2016 and Exhibit D at115. Defendant's objection claims that the information sought is "neither relevant nor material to the information." instant case and requires confidential and privileged Exhibit G at12. 25. It should first be noted that, although Defendant asserts a claim of privilege, Defendant fails to identify what privilege is claimed or to explain how tax returns are subject to a privilege. 26. To the extent Defendant claims the documents are confidential, this would simply mean that the documents (which, as discussed below, are material and relevant) should be produced pursuant to a confidentiality order. 27. As to Defendant's argument that the documents are not relevant or material, that is incorrect. Attached as Exhibit O is an Affidavit of Suzanne Parrish previously filed in this matter in which Ms. Parrish explains that the outstanding insurance premiums which are the subject of this lawsuit were calculated based upon an audit of Defendant's gross receipts earned 8 FILED: KINGS COUNTY CLERK 02/08/2021 02:21 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 02/08/2021 during the period of time when the two Atlantic Casualty policies at is