Preview
FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASUALTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,
AFFIRMATION IN OPPOSITION
v. TO DEFENDANT’S MOTION TO
COMPEL HULL INSURANCE
EASTERN FRUIT & VEGETABLES INC. COMPANY OF NEW YORK, INC.
TO RESPOND TO SUBPOENA
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”), hereby affirms the following
under penalties of perjury:
1. As counsel for Atlantic, I am familiar with the facts and circumstances set forth in
this Affirmation.
2. This affirmation is submitted in opposition to the motion filed by Defendant
seeking to compel Hull and Company of New York, Inc. to respond to Defendant’s subpoena.
As discussed more fully in the accompanying memorandum of law, Defendant’s motion should be
denied because:
(a) Defendant fails to demonstrate good faith efforts to resolve the dispute raised in
this discovery motion, as required under 22 NYCRR 202.20-f and
22 NYCRR 202.7;
(b) Defendant waived its right to pursue further discovery once the note of issue was
filed, particularly since Defendant demanded that Atlantic file the note of issue and
since Defendant snubbed Atlantic’s offers to extend the note of issue deadline;
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(c) Defendant has failed to demonstrate that unusual or unanticipated circumstances
arose after the filing of the note of issue which would prejudice Defendant and, as
a result, this Court may not permit further discovery;
(d) the subpoena does not comply with CPLR 3101(a)(4);
(e) Defendant has failed to satisfy even the pre-note of issue standard for obtaining the
requested discovery – i.e. that the documents sought must be material and necessary
to this matter; and
(f) Defendant did not effect timely and/or proper service of the subpoena on Hull and
on Atlantic.
3. We do not discuss all of these bases below, but rather, discuss the facts relevant to
these issues. The legal issues relating to these are discussed in the accompanying memorandum
of law.
A. Defendant Has Failed to Submit a Proper Affirmation of Good Faith
4. As there are no facts relevant to point “a” other than Defendant’s document entitled
Affirmation in Good Faith and the relevant law, we do not further discuss that issue herein.
B. Defendant Waived its Right to Further Discovery
5. Atlantic has been actively and diligently prosecuting this matter. A printout of the
docket in this matter is attached as Exhibit 1.1 Additionally, attached as Exhibits 2, 3 4 and 5 are
copies of the affirmations previously submitted in connection with this matter demonstrating and
explaining Atlantic’s efforts to move this matter forward.
6. On March 19, 2021 Defendant filed a Demand to File Note of Issue. See, Exhibit 6.
1
Bolded references to exhibits refer to the exhibits attached to Atlantic’s papers in the present motion.
Other exhibits
referenced herein are not bolded.
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7. Defendant’s Demand to File Note of Issue was filed one week after Atlantic filed a
motion seeking to correct typographical errors in an order conditionally precluding Defendant as
a result of Defendant’s failure to properly respond to Atlantic’s discovery demands. See,
Exhibit 1.2 Defendant’s Demand to File Note of Issue was also filed one week before Defendant’s
deadline in the conditional order to provide responses. See, Order [NYSCEF Doc. 185], annexed
as part of Exhibit 4.
8. On June 7, 2021 Defendant filed the subpoena at issue in this motion (the “Second
Subpoena”) along with an affidavit of service. See, [NYSCEF Doc. Nos. 231 and 232]. The
Second Subpoena seeks the exact same documents requested in the Initial Subpoena. Id. This was
our first notice that Defendant had served a second subpoena on Hull.
9. On Tuesday, June 8, 2021, I called Defendant’s counsel and left a detailed message
with his assistant advising that I was offering to extend the note of issue deadline in light of his
subpoena. See, Exhibit 5 at Exhibit V.3
10. Unbeknownst to us, on June 8, 2021 Hull responded to Defendant’s subpoena. See,
Exhibit D annexed to Defendant’s motion. Nonetheless, had Defendant’s counsel requested an
extension of the note of issue deadline in order to file this motion, we would have consented.
11. On June 9, 2021 I sent a letter to Defendant’s counsel (by email and regular mail)
stating that “I specifically advised Mo [Defendant’s counsel’s assistant] that I was calling to offer
you to stipulate to extend the note of issue deadline to account for the return date of your subpoena.
2
Notably, although Defendant would not consent to amend the order (see, Affirmation annexed as Exhibit 4 at ¶¶4
and 12 and Exhibit E), defendant’s opposition did not refute either the typographical errors or that they should be
amended, but instead, Defendant improperly attempted to use the opposition as a belated motion for reargument. See
[NYSCEF Doc. No. 193].
3
Where exhibits contain sub-exhibits, we have added bookmarks for the Court’s convenience.
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* * * I have not heard back from you and, therefore, presume that you agree that the note of issue
can be filed on June 11, as required.” Id.
12. On Thursday, June 10, 2021, after counsel for Defendant abruptly hung up on the
undersigned without allowing me to speak and refusing to hear anything I had to say, I wrote a
text to Defendant’s counsel advising “[i]f you want an extension of the note of issue, you need to
contact me immediately.” Exhibit 5 at Exhibit U.
13. Since Defendant’s counsel did not contact us to seek an extension of the note of
issue deadline, and since the Second Subpoena sought the same documents which Defendant’s
counsel sought in the Initial Subpoena, to which a response had already been provided, we believed
discovery was complete and, therefore, filed the note of issue on June 11, 2021. See, [NYSCEF
Doc. No. 233], a copy of which is attached as Exhibit 7. As it turned out, Hull had, in fact, already
responded to the Second Subpoena. See, [NYSCEF Doc. No. 264].
14. Notably, although Defendant’s counsel was aware on June 8, 2021 that Hull had
responded to the subpoena, Defendant made no effort until after the note of issue was filed to seek
to compel any further response from Hull.
15. As discussed in the accompanying memorandum of law, since the note of issue has
been filed (and particularly since Defendant demanded that Atlantic file the note of issue and
refused Atlantic’s offers to extend the note of issue deadline), Defendant has waived any further
ability to pursue its Second Subpoena.
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C. Unusual and Unanticipated Circumstances Have Not Arisen Since the
Filing of the Note of Issue
16. At the same time Defendant demanded that Atlantic file the note of issue,
Defendant also served Hull & Co. of NY, Inc. with a subpoena (the “Initial Subpoena”) seeking
the same documents Defendant seeks in the subpoena at issue in the present motion. See, Subpoena
[NYSCEF Doc. No. 197], annexed as Exhibit 8.
17. Hull served its responses and objections to that subpoena dated April 14, 2021. See,
Exhibit 9.
18. On April 23, 2021 (after Hull’s response to the Initial Subpoena) we wrote to
Defendant’s counsel regarding the upcoming compliance conference, advising that “[w]e are not
aware of any discovery requested by Defendant which is outstanding. If you believe there is
additional discovery outstanding beyond what is listed in the proposed order [which listed only a
different subpoena served by Atlantic], please let me know.” See, Exhibit 5 at Exhibit Q.
19. On April 27, 2021 we attempted to urge counsel for Defendant to consent to a
virtual compliance conference. See, Exhibit 5 at Exhibits R and U. Defendant, however, refused
to respond and, as a result, no conference was conducted. Had a conference been conducted,
Defendant could have addressed at that time any additional time it needed to address its
subpoena(s).
20. It appears from Defendant’s affidavit of service that Defendant served the Second
Subpoena on May 19, 2021. See, [NYSCEF Doc. No. 232]. Defendant does not provide any
explanation for this delay of more than a month. If Defendant had served the Second Subpoena
sooner, itcould have made the subpoena returnable earlier, and it could have filed this motion
before the note of issue deadline.
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21. As discussed above, after learning that Defendant served the Second Subpoena, the
undersigned attempted to contact Defendant’s counsel several times to offer to extend the note of
issue deadline specifically to allow Defendant to address its subpoena. Defendant refused to
respond to any of our efforts.
22. Defendant could have responded to our proposed compliance conference order by
asking to include an entry regarding its intentions to further pursue Hull for documents; Defendant
could have participated in a virtual compliance conference during which it could have addressed
with the Court its intention to further pursue documents from Hull; Defendant could have accepted
any of Atlantic’s several offers to extend the note of issue; or, although completely unnecessary,
Defendant could have filed a motion with the Court seeking to extend the note of issue.
23. It is clear that the circumstances leading to the present motion did not develop after
the note of issue, and that there were no unusual or unanticipated circumstances causing the motion
to be made after the note of issue had been filed. To the contrary, the only reason this application
was filed after the note of issue is because Defendant refused to communicate with the
undersigned. This Court should not reward Defendant for its dilatory conduct by permitting
Defendant to now engage in post-note discovery.
D. The Subpoena Does Not Comply with CPLR 3101(a)(4)
24. The content of the subpoena at issue [NYSCEF Doc. No. 231] speaks for itself and
demonstrates that the subpoena does not comply with CPLR 3101(a)(4). As a result, we do not
address that issue further at this point.
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E. Defendant Has Failed to Satisfy Even the Pre-Note “Material and
Necessary” Standard
25. The present matter is a collections lawsuit. In summary, Defendant failed to pay
premiums which were assessed as a result of an audit of Defendant’s books and records. In this
lawsuit, Atlantic seeks to recover those premiums. See, Complaint (Exhibit 10) and Affidavit of
Suzanne Parrish (Exhibit 11).
26. A copy of Defendant’s Answer is annexed as Exhibit 12.
27. By Decision and Order dated April 9, 2021, the Court dismissed Defendant’s
BCL §1312 defenses, identified in the Decision and Order as the Second and Sixth Affirmative
Defenses. See, [NYSCEF Doc. No. 211] at p. 4 (holding that “[m]otion sequence #5 is granted to
the extent that motion sequence #3 is restored and the Defendant’s second and sixth affirmative
defenses are dismissed.”).
28. For the reasons discussed in the accompanying memorandum of law, Defendant
has failed to demonstrate that the documents requested in the subpoena are material and necessary
to this matter.
F. Defendant Failed to Timely or Properly Serve the Subpoena
29. The subpoena was served on May 19, 2021 (see [NYSCEF Doc. No. 232]) and was
made returnable only 29 days later, on June 17, 2021 (see, [NYSCEF Doc. No. 231]). As discussed
in the accompanying memorandum of law, this is improper and/or untimely service.
30. Although the subpoena was served on the non-party on May 19, 2021, Atlantic was
not notified of the subpoena until it was filed on the docket on June 7, 2021. As discussed in the
accompanying memorandum of law, this is in violation of the CPLR.
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31. For the reasons discussed above and in the accompanying memorandum of law, it
is respectfully submitted that Defendant’s motion should be denied.
Dated: White Plains, New York
June 29, 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
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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
within affirmation, 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 1902,
which is in compliance with NYCRR 202.8-b.
Dated: White Plains, New York
June 29, 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
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Preview
FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ATLANTIC CASUALTY INSURANCE COMPANY, Index No.: 510798/2018 Plaintiff, AFFIRMATION IN OPPOSITION v. TO DEFENDANT’S MOTION TO COMPEL HULL INSURANCE EASTERN FRUIT & VEGETABLES INC. COMPANY OF NEW YORK, INC. TO RESPOND TO SUBPOENA 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”), hereby affirms the following under penalties of perjury: 1. As counsel for Atlantic, I am familiar with the facts and circumstances set forth in this Affirmation. 2. This affirmation is submitted in opposition to the motion filed by Defendant seeking to compel Hull and Company of New York, Inc. to respond to Defendant’s subpoena. As discussed more fully in the accompanying memorandum of law, Defendant’s motion should be denied because: (a) Defendant fails to demonstrate good faith efforts to resolve the dispute raised in this discovery motion, as required under 22 NYCRR 202.20-f and 22 NYCRR 202.7; (b) Defendant waived its right to pursue further discovery once the note of issue was filed, particularly since Defendant demanded that Atlantic file the note of issue and since Defendant snubbed Atlantic’s offers to extend the note of issue deadline; 1 1 of 9 FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 (c) Defendant has failed to demonstrate that unusual or unanticipated circumstances arose after the filing of the note of issue which would prejudice Defendant and, as a result, this Court may not permit further discovery; (d) the subpoena does not comply with CPLR 3101(a)(4); (e) Defendant has failed to satisfy even the pre-note of issue standard for obtaining the requested discovery – i.e. that the documents sought must be material and necessary to this matter; and (f) Defendant did not effect timely and/or proper service of the subpoena on Hull and on Atlantic. 3. We do not discuss all of these bases below, but rather, discuss the facts relevant to these issues. The legal issues relating to these are discussed in the accompanying memorandum of law. A. Defendant Has Failed to Submit a Proper Affirmation of Good Faith 4. As there are no facts relevant to point “a” other than Defendant’s document entitled Affirmation in Good Faith and the relevant law, we do not further discuss that issue herein. B. Defendant Waived its Right to Further Discovery 5. Atlantic has been actively and diligently prosecuting this matter. A printout of the docket in this matter is attached as Exhibit 1.1 Additionally, attached as Exhibits 2, 3 4 and 5 are copies of the affirmations previously submitted in connection with this matter demonstrating and explaining Atlantic’s efforts to move this matter forward. 6. On March 19, 2021 Defendant filed a Demand to File Note of Issue. See, Exhibit 6. 1 Bolded references to exhibits refer to the exhibits attached to Atlantic’s papers in the present motion. Other exhibits referenced herein are not bolded. 2 2 of 9 FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 7. Defendant’s Demand to File Note of Issue was filed one week after Atlantic filed a motion seeking to correct typographical errors in an order conditionally precluding Defendant as a result of Defendant’s failure to properly respond to Atlantic’s discovery demands. See, Exhibit 1.2 Defendant’s Demand to File Note of Issue was also filed one week before Defendant’s deadline in the conditional order to provide responses. See, Order [NYSCEF Doc. 185], annexed as part of Exhibit 4. 8. On June 7, 2021 Defendant filed the subpoena at issue in this motion (the “Second Subpoena”) along with an affidavit of service. See, [NYSCEF Doc. Nos. 231 and 232]. The Second Subpoena seeks the exact same documents requested in the Initial Subpoena. Id. This was our first notice that Defendant had served a second subpoena on Hull. 9. On Tuesday, June 8, 2021, I called Defendant’s counsel and left a detailed message with his assistant advising that I was offering to extend the note of issue deadline in light of his subpoena. See, Exhibit 5 at Exhibit V.3 10. Unbeknownst to us, on June 8, 2021 Hull responded to Defendant’s subpoena. See, Exhibit D annexed to Defendant’s motion. Nonetheless, had Defendant’s counsel requested an extension of the note of issue deadline in order to file this motion, we would have consented. 11. On June 9, 2021 I sent a letter to Defendant’s counsel (by email and regular mail) stating that “I specifically advised Mo [Defendant’s counsel’s assistant] that I was calling to offer you to stipulate to extend the note of issue deadline to account for the return date of your subpoena. 2 Notably, although Defendant would not consent to amend the order (see, Affirmation annexed as Exhibit 4 at ¶¶4 and 12 and Exhibit E), defendant’s opposition did not refute either the typographical errors or that they should be amended, but instead, Defendant improperly attempted to use the opposition as a belated motion for reargument. See [NYSCEF Doc. No. 193]. 3 Where exhibits contain sub-exhibits, we have added bookmarks for the Court’s convenience. 3 3 of 9 FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 * * * I have not heard back from you and, therefore, presume that you agree that the note of issue can be filed on June 11, as required.” Id. 12. On Thursday, June 10, 2021, after counsel for Defendant abruptly hung up on the undersigned without allowing me to speak and refusing to hear anything I had to say, I wrote a text to Defendant’s counsel advising “[i]f you want an extension of the note of issue, you need to contact me immediately.” Exhibit 5 at Exhibit U. 13. Since Defendant’s counsel did not contact us to seek an extension of the note of issue deadline, and since the Second Subpoena sought the same documents which Defendant’s counsel sought in the Initial Subpoena, to which a response had already been provided, we believed discovery was complete and, therefore, filed the note of issue on June 11, 2021. See, [NYSCEF Doc. No. 233], a copy of which is attached as Exhibit 7. As it turned out, Hull had, in fact, already responded to the Second Subpoena. See, [NYSCEF Doc. No. 264]. 14. Notably, although Defendant’s counsel was aware on June 8, 2021 that Hull had responded to the subpoena, Defendant made no effort until after the note of issue was filed to seek to compel any further response from Hull. 15. As discussed in the accompanying memorandum of law, since the note of issue has been filed (and particularly since Defendant demanded that Atlantic file the note of issue and refused Atlantic’s offers to extend the note of issue deadline), Defendant has waived any further ability to pursue its Second Subpoena. 4 4 of 9 FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 C. Unusual and Unanticipated Circumstances Have Not Arisen Since the Filing of the Note of Issue 16. At the same time Defendant demanded that Atlantic file the note of issue, Defendant also served Hull & Co. of NY, Inc. with a subpoena (the “Initial Subpoena”) seeking the same documents Defendant seeks in the subpoena at issue in the present motion. See, Subpoena [NYSCEF Doc. No. 197], annexed as Exhibit 8. 17. Hull served its responses and objections to that subpoena dated April 14, 2021. See, Exhibit 9. 18. On April 23, 2021 (after Hull’s response to the Initial Subpoena) we wrote to Defendant’s counsel regarding the upcoming compliance conference, advising that “[w]e are not aware of any discovery requested by Defendant which is outstanding. If you believe there is additional discovery outstanding beyond what is listed in the proposed order [which listed only a different subpoena served by Atlantic], please let me know.” See, Exhibit 5 at Exhibit Q. 19. On April 27, 2021 we attempted to urge counsel for Defendant to consent to a virtual compliance conference. See, Exhibit 5 at Exhibits R and U. Defendant, however, refused to respond and, as a result, no conference was conducted. Had a conference been conducted, Defendant could have addressed at that time any additional time it needed to address its subpoena(s). 20. It appears from Defendant’s affidavit of service that Defendant served the Second Subpoena on May 19, 2021. See, [NYSCEF Doc. No. 232]. Defendant does not provide any explanation for this delay of more than a month. If Defendant had served the Second Subpoena sooner, itcould have made the subpoena returnable earlier, and it could have filed this motion before the note of issue deadline. 5 5 of 9 FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 21. As discussed above, after learning that Defendant served the Second Subpoena, the undersigned attempted to contact Defendant’s counsel several times to offer to extend the note of issue deadline specifically to allow Defendant to address its subpoena. Defendant refused to respond to any of our efforts. 22. Defendant could have responded to our proposed compliance conference order by asking to include an entry regarding its intentions to further pursue Hull for documents; Defendant could have participated in a virtual compliance conference during which it could have addressed with the Court its intention to further pursue documents from Hull; Defendant could have accepted any of Atlantic’s several offers to extend the note of issue; or, although completely unnecessary, Defendant could have filed a motion with the Court seeking to extend the note of issue. 23. It is clear that the circumstances leading to the present motion did not develop after the note of issue, and that there were no unusual or unanticipated circumstances causing the motion to be made after the note of issue had been filed. To the contrary, the only reason this application was filed after the note of issue is because Defendant refused to communicate with the undersigned. This Court should not reward Defendant for its dilatory conduct by permitting Defendant to now engage in post-note discovery. D. The Subpoena Does Not Comply with CPLR 3101(a)(4) 24. The content of the subpoena at issue [NYSCEF Doc. No. 231] speaks for itself and demonstrates that the subpoena does not comply with CPLR 3101(a)(4). As a result, we do not address that issue further at this point. 6 6 of 9 FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 E. Defendant Has Failed to Satisfy Even the Pre-Note “Material and Necessary” Standard 25. The present matter is a collections lawsuit. In summary, Defendant failed to pay premiums which were assessed as a result of an audit of Defendant’s books and records. In this lawsuit, Atlantic seeks to recover those premiums. See, Complaint (Exhibit 10) and Affidavit of Suzanne Parrish (Exhibit 11). 26. A copy of Defendant’s Answer is annexed as Exhibit 12. 27. By Decision and Order dated April 9, 2021, the Court dismissed Defendant’s BCL §1312 defenses, identified in the Decision and Order as the Second and Sixth Affirmative Defenses. See, [NYSCEF Doc. No. 211] at p. 4 (holding that “[m]otion sequence #5 is granted to the extent that motion sequence #3 is restored and the Defendant’s second and sixth affirmative defenses are dismissed.”). 28. For the reasons discussed in the accompanying memorandum of law, Defendant has failed to demonstrate that the documents requested in the subpoena are material and necessary to this matter. F. Defendant Failed to Timely or Properly Serve the Subpoena 29. The subpoena was served on May 19, 2021 (see [NYSCEF Doc. No. 232]) and was made returnable only 29 days later, on June 17, 2021 (see, [NYSCEF Doc. No. 231]). As discussed in the accompanying memorandum of law, this is improper and/or untimely service. 30. Although the subpoena was served on the non-party on May 19, 2021, Atlantic was not notified of the subpoena until it was filed on the docket on June 7, 2021. As discussed in the accompanying memorandum of law, this is in violation of the CPLR. 7 7 of 9 FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 31. For the reasons discussed above and in the accompanying memorandum of law, it is respectfully submitted that Defendant’s motion should be denied. Dated: White Plains, New York June 29, 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 8 8 of 9 FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 06/29/2021 WORD COUNT CERTIFICATION I hereby certify pursuant to 22 NYCRR 202.8-b that the total number of words in the within affirmation, 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 1902, which is in compliance with NYCRR 202.8-b. Dated: White Plains, New York June 29, 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 9 9 of 9