Preview
FILED: KINGS COUNTY CLERK 03/11/2021 04:16 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 03/11/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASAULTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,
v. AFFIRMATION IN
SUPPORT OF MOTION
EASTERN FRUIT & VEGETABLES INC.
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 2001 and/or CPLR 5019 and/or any other appropriate rule
of law or equity amending the Court’s order dated February 25, 2021 to correct typographical
and/or clerical errors; and/or (b) awarding Plaintiff the costs associated with having to file such
motion in light of Defendant’s refusal to speak with or otherwise communicate with Plaintiff
regarding this administrative issue and other sanctions as the Court deems appropriate; and (c)
granting such other and further relief as this Court deems just, equitable and proper.
SUMMARY
3. Defendant has not responded to the substance of Atlantic Casualty’s discovery
demands and interrogatories. Atlantic Casualty filed two motions seeking relief with respect to
that failure. The Court issued an order dated February 25, 2021 in response to Atlantic Casualty’s
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second motion. Although it is our understanding and belief that the Court intended to provide a
remedy to Atlantic Casualty (Plaintiff), it appears that the order inadvertently contains
typographical or clerical errors, as a result of which the ultimate relief awarded was to direct
Plaintiff (i.e. Atlantic Casualty) to respond to its own demands. In light of this, Atlantic Casualty
requests that the order be corrected.
4. We also request costs and other sanctions which the Court deems appropriate. As
the Court will note, counsel for Defendant habitually ignores communications from the
undersigned attempting to resolve matters (including matters relating to the underlying discovery
as well as the issue at hand). This is what resulted in the original discovery motion, the motion
seeking to enforce the November 4, 2020 order and now this motion to obtain a very simple
correction of what was clearly a clerical error. Since we would not have had to incur the costs of
filing yet another motion but for the conduct of Defendant’s counsel, it is respectfully requested
that the Court award Atlantic Casualty the costs and legal fees associated with filing this motion
and any other sanctions this Court deems appropriate.
ARGUMENT
5. Attached as Exhibit A is a copy of the Court’s order dated February 25, 2021.
6. Attached respectively as Exhibits B, C and D are copies of the papers filed in
support, opposition and reply with respect to the motion being addressed in the order attached as
Exhibit A.
7. As demonstrated in the motion papers, the issue involved in the motion was that
Plaintiff, Atlantic Casualty had served Defendant with discovery demands and interrogatories for
which Defendant has not provided proper responses. Although we expect that the Court intended
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to grant relief to Plaintiff in response to Plaintiff’s motion, there are typographical errors in the
order which have the effect of issuing an order against Plaintiff:
The court having considered the parties contentions, limited the demands that
plaintiff was to respond to. Plaintiff did not move to reargue or object to this court’s
order, and did provide some additional responses in compliance with the order. As
such, preclusion will not be ordered as of yet, although plaintiff did not fully
comply. Accordingly, plaintiff is directed to provide proper responses to the
demands…. [Emphasis added.]
Order (Exhibit A) at p. 1. We believe that each of these underlined references to “plaintiff” was
intended to refer to “defendant.” Because the typographical issue affects the relief being afforded,
and to avoid any potential confusion as to what the Court was directing, we believe it is necessary
for the Court to correct this in order to avoid any problems in enforcing the order.
8. In light of the above, it is respectfully requested that the Court correct the within
order to change each of the underlined instances of “plaintiff” to “defendant.”
9. Furthermore, as demonstrated in the Standards of Civility, adopted by the courts,
lawyers are encouraged to avoid unnecessary motion practice by agreeing with other counsel
whenever is practicable to do so and should promptly return telephone calls and electronic
communications and answer correspondence reasonably requiring a response, as appropriate.
10. Consistent with this, 22 NYCRR 202.20-f was amended to provide that if a party
unreasonably fails and/or refuses to participate in a conference requested by another party to
address an issue regarding a disclosure dispute, the failure to participate in such a call may be
addressed by the imposition of sanctions pursuant to Part 130.
11. We have had continuous difficulties in speaking with counsel for Defendant who
continues in his refusal to respond to emails and telephone calls from the undersigned. See,
Affirmation of Good Faith [NYSCEF Doc. No. 14]; Affirmation of Good Faith [NYSCEF Doc.
No. 163].
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12. As demonstrated in the emails attached as Exhibit E,1 Defendant’s continued
failure to respond to our communications has caused us to file this motion, which is now the third
motion arising out of the same discovery dispute. As this motion should not have been necessary,
it is respectfully submitted that the Court should award Atlantic Casualty the costs associated with
the present motion and any other sanctions pursuant to Rule 130 and/or 22 NYCRR 202.20-f or
any other rule the Court deems appropriate.
WHEREFORE, it is respectfully requested that this Court grant the within motion, together
with such other and further relief as this Court deems just, equitable and proper.
Dated: White Plains, New York
March 11, 2021
Keidel, Weldon & Cunningham, LLP
By: ________________________________
Debra M. Krebs, Esq.
Attorneys for 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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We note for the Court’s convenience that the last page of Exhibit E is the proposed Amended Order in typed format.
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WORD COUNT CERTIFICATION
I hereby certify pursuant to 22 NYCRR 202.8-b that the total number of words in the
foregoing Affirmation in Support of Motion, inclusive of point headings and footnotes and
exclusive of caption, signature blocks, and pages containing the table of contents, table of citations
and this Statement is 969, which is in compliance with NYCRR 202.8-b.
Dated: White Plains, New York
March 11, 2021
KEIDEL, WELDON & CUNNINGHAM, LLP
By:
Debra M. Krebs, Esq.
Attorneys for Plaintiff
Atlantic Casualty Insurance Company
925 Westchester Avenue, Suite 400
White Plains, New York 10604
(914) 948-7000
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Preview
FILED: KINGS COUNTY CLERK 03/11/2021 04:16 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 03/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ATLANTIC CASAULTY INSURANCE COMPANY, Index No.: 510798/2018 Plaintiff, v. AFFIRMATION IN SUPPORT OF MOTION EASTERN FRUIT & VEGETABLES INC. 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 2001 and/or CPLR 5019 and/or any other appropriate rule of law or equity amending the Court’s order dated February 25, 2021 to correct typographical and/or clerical errors; and/or (b) awarding Plaintiff the costs associated with having to file such motion in light of Defendant’s refusal to speak with or otherwise communicate with Plaintiff regarding this administrative issue and other sanctions as the Court deems appropriate; and (c) granting such other and further relief as this Court deems just, equitable and proper. SUMMARY 3. Defendant has not responded to the substance of Atlantic Casualty’s discovery demands and interrogatories. Atlantic Casualty filed two motions seeking relief with respect to that failure. The Court issued an order dated February 25, 2021 in response to Atlantic Casualty’s 1 1 of 5 FILED: KINGS COUNTY CLERK 03/11/2021 04:16 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 03/11/2021 second motion. Although it is our understanding and belief that the Court intended to provide a remedy to Atlantic Casualty (Plaintiff), it appears that the order inadvertently contains typographical or clerical errors, as a result of which the ultimate relief awarded was to direct Plaintiff (i.e. Atlantic Casualty) to respond to its own demands. In light of this, Atlantic Casualty requests that the order be corrected. 4. We also request costs and other sanctions which the Court deems appropriate. As the Court will note, counsel for Defendant habitually ignores communications from the undersigned attempting to resolve matters (including matters relating to the underlying discovery as well as the issue at hand). This is what resulted in the original discovery motion, the motion seeking to enforce the November 4, 2020 order and now this motion to obtain a very simple correction of what was clearly a clerical error. Since we would not have had to incur the costs of filing yet another motion but for the conduct of Defendant’s counsel, it is respectfully requested that the Court award Atlantic Casualty the costs and legal fees associated with filing this motion and any other sanctions this Court deems appropriate. ARGUMENT 5. Attached as Exhibit A is a copy of the Court’s order dated February 25, 2021. 6. Attached respectively as Exhibits B, C and D are copies of the papers filed in support, opposition and reply with respect to the motion being addressed in the order attached as Exhibit A. 7. As demonstrated in the motion papers, the issue involved in the motion was that Plaintiff, Atlantic Casualty had served Defendant with discovery demands and interrogatories for which Defendant has not provided proper responses. Although we expect that the Court intended 2 2 of 5 FILED: KINGS COUNTY CLERK 03/11/2021 04:16 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 03/11/2021 to grant relief to Plaintiff in response to Plaintiff’s motion, there are typographical errors in the order which have the effect of issuing an order against Plaintiff: The court having considered the parties contentions, limited the demands that plaintiff was to respond to. Plaintiff did not move to reargue or object to this court’s order, and did provide some additional responses in compliance with the order. As such, preclusion will not be ordered as of yet, although plaintiff did not fully comply. Accordingly, plaintiff is directed to provide proper responses to the demands…. [Emphasis added.] Order (Exhibit A) at p. 1. We believe that each of these underlined references to “plaintiff” was intended to refer to “defendant.” Because the typographical issue affects the relief being afforded, and to avoid any potential confusion as to what the Court was directing, we believe it is necessary for the Court to correct this in order to avoid any problems in enforcing the order. 8. In light of the above, it is respectfully requested that the Court correct the within order to change each of the underlined instances of “plaintiff” to “defendant.” 9. Furthermore, as demonstrated in the Standards of Civility, adopted by the courts, lawyers are encouraged to avoid unnecessary motion practice by agreeing with other counsel whenever is practicable to do so and should promptly return telephone calls and electronic communications and answer correspondence reasonably requiring a response, as appropriate. 10. Consistent with this, 22 NYCRR 202.20-f was amended to provide that if a party unreasonably fails and/or refuses to participate in a conference requested by another party to address an issue regarding a disclosure dispute, the failure to participate in such a call may be addressed by the imposition of sanctions pursuant to Part 130. 11. We have had continuous difficulties in speaking with counsel for Defendant who continues in his refusal to respond to emails and telephone calls from the undersigned. See, Affirmation of Good Faith [NYSCEF Doc. No. 14]; Affirmation of Good Faith [NYSCEF Doc. No. 163]. 3 3 of 5 FILED: KINGS COUNTY CLERK 03/11/2021 04:16 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 03/11/2021 12. As demonstrated in the emails attached as Exhibit E,1 Defendant’s continued failure to respond to our communications has caused us to file this motion, which is now the third motion arising out of the same discovery dispute. As this motion should not have been necessary, it is respectfully submitted that the Court should award Atlantic Casualty the costs associated with the present motion and any other sanctions pursuant to Rule 130 and/or 22 NYCRR 202.20-f or any other rule the Court deems appropriate. WHEREFORE, it is respectfully requested that this Court grant the within motion, together with such other and further relief as this Court deems just, equitable and proper. Dated: White Plains, New York March 11, 2021 Keidel, Weldon & Cunningham, LLP By: ________________________________ Debra M. Krebs, Esq. Attorneys for 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 1 We note for the Court’s convenience that the last page of Exhibit E is the proposed Amended Order in typed format. 4 4 of 5 FILED: KINGS COUNTY CLERK 03/11/2021 04:16 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 03/11/2021 WORD COUNT CERTIFICATION I hereby certify pursuant to 22 NYCRR 202.8-b that the total number of words in the foregoing Affirmation in Support of Motion, inclusive of point headings and footnotes and exclusive of caption, signature blocks, and pages containing the table of contents, table of citations and this Statement is 969, which is in compliance with NYCRR 202.8-b. Dated: White Plains, New York March 11, 2021 KEIDEL, WELDON & CUNNINGHAM, LLP By: Debra M. Krebs, Esq. Attorneys for Plaintiff Atlantic Casualty Insurance Company 925 Westchester Avenue, Suite 400 White Plains, New York 10604 (914) 948-7000 5 5 of 5