Exhibit,Appendix: Atlantic Casualty Insurance Company v. Eastern Fruit & Vegetables Inc.

On May 24, 2018 a Exhibit,Appendix was filed involving a dispute between Atlantic Casualty Insurance Company, and Eastern Fruit & Vegetables Inc., for Commercial - Contract in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

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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FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

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

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FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

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].

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FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

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.

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FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 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

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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FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

Exhibit A
FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 185
281 RECEIVED NYSCEF: 03/05/2021
06/29/2021

1 of 2
FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 185
281 RECEIVED NYSCEF: 03/05/2021
06/29/2021

2 of 2
FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

Exhibit E
FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

From: Debra Krebs
To: Blake@lblakemorris.com; info@lblakemorris.com
Subject: RE: Atlantic Casualty v. Eastern Fruit
Date: Thursday, March 11, 2021 12:06:00 PM

Blake,

I called your office about two hours ago to make one more attempt to speak with you to see if we
can stipulate to correct the order without the need for motion practice. I left a detailed message
with Mo Hassan asking that you please call me.

If I do not hear back from you by 3pm, I will be filing a motion as per below.

Thank you.
Debbie

Debra M. Krebs, Esq.
Keidel, Weldon & Cunningham, LLP
925 Westchester Avenue
Suite 400
White Plains, NY 10604
Tel: (914) 948-7000
(201) 490-7706
Fax: (914) 948-7010
dkrebs@kwcllp.com

Confidentiality: The information contained in this e-mail message is intended only for the
use of the individual or entity named above and is privileged and confidential. Any
dissemination, distribution, or copy of this communication other than to the individual or
entity named above is strictly prohibited. If you have received this communication in error,
please notify us immediately by telephone.

From: Debra Krebs
Sent: Tuesday, March 9, 2021 7:23 AM
To: Blake@lblakemorris.com; info@lblakemorris.com
Subject: RE: Atlantic Casualty v. Eastern Fruit

Blake,

I just wanted to follow up with you regarding the email below. If I do not hear back from you by
noon tomorrow, I will be filing a motion as per my email below.

Please let me know ASAP whether you will stipulate to correct the order.

Thank you.
Debbie
FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

Debra M. Krebs, Esq.
Keidel, Weldon & Cunningham, LLP
925 Westchester Avenue
Suite 400
White Plains, NY 10604
Tel: (914) 948-7000
(201) 490-7706
Fax: (914) 948-7010
dkrebs@kwcllp.com

From: Debra Krebs
Sent: Friday, March 5, 2021 5:55 PM
To: Blake@lblakemorris.com; info@lblakemorris.com
Subject: Atlantic Casualty v. Eastern Fruit

Blake,

I tried calling you today. Your office phone was not answering and I ultimately received a message
saying that your messages are full on both of the telephone numbers listed on your website. As a
result, I left a voicemail message for you on your cell phone number, but have not heard back.

You may have noticed that the Court’s order that was filed today has several references to plaintiff
which were clearly intended to refer to defendant. I spoke with the Court to find out how to get this
amended since it is clearly just ministerial. I was told that the preferred method is for the parties to
stipulate to amend the order. As a result, I have prepared a stipulation with a proposed amended
order. See attached. Please return the stipulation to me signed by Wednesday, March 10, 2021.
If we do not receive the signed stipulation by that date, we will file a motion seeking to correct the
order and will ask that the Court award the costs associated with filing the motion. Although we
made the stipulation as neutral as possible and made it very clear that we are only correcting the
typographical issue, if you believe you require an amendment to the stipulation in order to sign it,
please call me to discuss it so we may determine whether the parties can reach agreement regarding
any proposed changes.

Thank you for your anticipated cooperation.
Debbie Krebs

Debra M. Krebs, Esq.
Keidel, Weldon & Cunningham, LLP
925 Westchester Avenue
Suite 400
White Plains, NY 10604
FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

Tel: (914) 948-7000
(201) 490-7706
Fax: (914) 948-7010
dkrebs@kwcllp.com

From: Debra Krebs
To: Blake@lblakemorris.com; info@lblakemorris.com
Subject: RE: Atlantic Casualty v. Eastern Fruit
Date: Tuesday, March 9, 2021 7:23:00 AM

Blake,

I just wanted to follow up with you regarding the email below. If I do not hear back from you by
noon tomorrow, I will be filing a motion as per my email below.

Please let me know ASAP whether you will stipulate to correct the order.

Thank you.
Debbie

Debra M. Krebs, Esq.
Keidel, Weldon & Cunningham, LLP
925 Westchester Avenue
Suite 400
White Plains, NY 10604
Tel: (914) 948-7000
(201) 490-7706
Fax: (914) 948-7010
dkrebs@kwcllp.com

From: Debra Krebs
Sent: Friday, March 5, 2021 5:55 PM
To: Blake@lblakemorris.com; info@lblakemorris.com
Subject: Atlantic Casualty v. Eastern Fruit

Blake,

If we do not receive the signed stipulation by that date, we will file a motion seeking to correct the
order and will ask that the Court award the costs associated with filing the motion. Although we
made the stipulation as neutral as possible and made it very clear that we are only correcting the
typographical issue, if you believe you require an amendment to the stipulation in order to sign it,
please call me to discuss it so we may determine whether the parties can reach agreement regarding
any proposed changes.

Thank you for your anticipated cooperation.
Debbie Krebs

Debra M. Krebs, Esq.
Keidel, Weldon & Cunningham, LLP
925 Westchester Avenue
Suite 400
White Plains, NY 10604
Tel: (914) 948-7000
(201) 490-7706
Fax: (914) 948-7010
dkrebs@kwcllp.com

From: Debra Krebs
To: Blake@lblakemorris.com; info@lblakemorris.com
Subject: Atlantic Casualty v. Eastern Fruit
Date: Friday, March 5, 2021 5:55:00 PM
Attachments: Stipulation to Amend Order.pdf

Blake,

Thank you for your anticipated cooperation.
Debbie Krebs

Debra M. Krebs, Esq.
Keidel, Weldon & Cunningham, LLP
925 Westchester Avenue
Suite 400
White Plains, NY 10604
Tel: (914) 948-7000
(201) 490-7706
Fax: (914) 948-7010
dkrebs@kwcllp.com

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASAULTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,

v. STIPULATION TO AMEND
ORDER
EASTERN FRUIT & VEGETABLES INC.

Defendant.

IT IS HEREBY STIPULATED, AGREED that in order to resolve typographical errors1

contained in the Court’s order dated February 25, 2021 [NYSCEF Doc. No. 185], the parties jointly

request that the Court execute the enclosed Amended Order in the place and stead of NYSCEF

Doc. No. 185. Both parties reserve all rights with respect to the amended order which they would

have as respects the order filed at NYSCEF Doc. No. 185.

This stipulation may be signed in counterparts. Copies of this stipulation and electronically

transmitted signatures on this stipulation shall be treated as originals.

KEIDEL, WELDON & CUNNINGHAM, LLP L. BLAKE MORRIS, ESQ.
Attorneys for Plaintiff Attorney for Defendant

By: Debra M. Krebs, Esq. By: L. Blake Morris, Esq.
925 Westchester Avenue, Suite 400 1214 Cortelyou Rd.
White Plains, New York 10604 Brooklyn, New York 11218-5404
(914) 948-7000 (718) 826-8401

1
This stipulation is not a concession by either party to the accuracy of the statements made in the order and is not an
acceptance by either party of the order, but is merely intended to correct instances where the court refers to “plaintiff”
when it is clear that the court intended to refer to “defendant.”

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FILED: KINGS COUNTY CLERK 06/29/2021 03:52 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 281 RECEIVED NYSCEF: 06/29/2021

At a Centralized Compliance Part of the Supreme
Court of the State of New York, held in and for the
county of Kings at the Courthouse located at Civic
Center, Bourgh of Brooklyn, City and State of New
York, on the day of March 2021

PRESENT:
HON. LAWRENCE KNIPEL, J.S.C.

ATLANTIC CASAULTY INSURANCE Cal. No. 4
COMPANY,
Index No.: 510798/2018
Plaintiff,

v. AMENDED ORDER

EASTERN FRUIT & VEGETABLES INC.

Defendant.

Plaintiff’s motion to strike is decided as follows:
This court’s order of 11/4/20 directed defendant to provide responses to plaintiff’s D&I,
notice to admit and interrogatories, upon having reviewed the demands and defendant’s motion
for a protective order. The court having considered the parties’ contentions, limited the demands
that defendant was required to respond to. Defendant 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 defendant did not fully comply. Accordingly,
defendant is directed to provide proper responses to the demands, responding to the information
sought, not just by referring to prior NYSCEF filings, rather, for example, if the demand seeks
names of persons with knowledge and identifying the area of knowledge, provide the names and
briefly identify the person’s basis of knowledge. Plaintiff need not be obligated to wade through
dozens of previously e-filed documents to see if any responsive information may have been
provided somewhere therein. Moreover, defendant’s claim that the tax returns are privileged is
denied. Defendant is to provide proper authorizations to the IRS for the tax returns for the relevant
years and proper responses as per order of 11/4/20 by 3/31/21 or shall be precluded from testifying
at trial or submitting affidavit in any dispositive motion without necessity for further motion by
plaintiff.
ENTERED/SO ORDERED
For Clerk’s Use Only

MG _______ Retracked
MD _______ Standard
Motion Seq. # 8 Complex
Hon. Lawrence Knipel, J.S.C.

Case Info

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Case No.

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Document Filed Date

June 29, 2021

Case Filing Date

May 24, 2018

County

Parties

Atlantic Casualty Insurance Company Plaintiff
CAHILL, THOMAS J. Attorney
Eastern Fruit & Vegetables Inc. Defendant
Hull & Company of New York Inc. Non Party
KREBS, DEBRA M Attorney for the Plaintiff
LEWIS, ROBERT W Attorney for the Plaintiff
MORRIS, LAWRENCE B Attorney for the Defendant
SHUR, JOSEPH M Attorney for the Plaintiff
MUDITHA HALLIYADDE Attorneys for Plaintiffs
ROBERT LEWIS Attorneys for Plaintiffs
JOHN CAHILL Attorney
RALPH GOLDSTEIN Attorneys for Plaintiffs
NATHANIEL COSTA Attorneys for Defendants
NATHAN COOK Attorneys for Defendants
KELECHI ACHOLONU Attorney
LYSTRA BLAKE Attorney
MICHAEL SHUR Attorney
ROBERT BOWLING Attorney
DEBRA MARCH Attorneys for Plaintiffs
KENNETH BAND Attorney
ROBERT WALKER Attorney
CARL LANDICINO Attorney

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Exhibit,Appendix: Atlantic Casualty Insurance Company v. Eastern Fruit & Vegetables Inc.

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