Preview
FILED: KINGS COUNTY CLERK 06/14/2021 10:56 AM INDEX NO. 510798/2018
NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/14/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASUALTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,
v. GOOD FAITH 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. I submit this affirmation pursuant to NYCRR 202.7(c) to demonstrate the good
faith attempts that we have made to resolve the issues addressed in this motion.
2. On March 19, 2021, Defendant served the undersigned with a Demand to File Note
of Issue purportedly pursuant to CPLR 3216. Since the deadline for the note of issue in response
to such demand is June 17, 2021, and since the Court had already directed that the note of issue be
filed by June 11, 2021 – prior to that date – we did not believe anything needed to be done in
response to that notice. We felt that if there was a need to extend the Court’s note of issue deadline,
we would simply request that the deadline pursuant to that notice be extended in consistent fashion.
3. This matter was scheduled for a final conference on April 30, 2021. In anticipation
of the conference, I telephoned Mr. Morris, counsel for Defendant, on April 6, 2021 to discuss any
outstanding discovery and enter into any stipulations regarding the same and/or to obtain his
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consent to a virtual conference with the Court. 1 I telephoned him at his office and left a message
with his assistant, Mohammed, to have Mr. Morris call me back. I did not receive a call back.
4. In follow up to my telephone call, on April 6, 2021 I wrote a letter 2 to Mr. Morris
advising him that I left a telephone message and asking that he call me back. A copy of the letter
(which was sent by e-mail and regular mail) 3 is attached as Exhibit P.
5. On April 16, 2021, I telephoned Mr. Morris’s office. He has two telephone lines
for his office. No one answered on either line and no voicemail system picked up. This has
happened on prior occasions when I have called him. As a result, I telephoned Mr. Morris on his
cell phone and left him a voicemail message to call me back. I did not receive any call in response.
6. On April 23, 2021, I wrote to Mr. Morris advising that “we 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 [enclosed with the letter], please
let me know.” A copy of the letter, which was sent to Mr. Morris via email and regular mail, is
attached as Exhibit Q. Mr. Morris did not respond to the letter and, as a result, did not advise us
of any discovery which he claimed to be outstanding.
7. On April 27, 2021, I telephoned Mr. Morris’ office again. The first time I called, I
received a busy signal. As a result, I telephoned Mr. Morris on his cell phone and left a message
1
I was also calling Mr. Morris to discuss a proposed stipulation I had sent to him seeking to withdraw our appeal
which is now academic. However, since that issue is not relevant to this motion, to the extent my multiple efforts to
reach Mr. Morris also sought to address that issue, it is not further addressed herein.
2
In response to a prior motion addressing Mr. Morris’ failure to respond to any of my communications, Mr. Morris
argued that he has never consented to receive emails. Although his assistant was answering the phone and taking
messages and although I had also left him messages on his cell phone, he argued that he was experiencing difficulties
with his office phone. We do not have a fax number for Mr. Morris and have been unable to obtain one. Because he
complained about other means of communications, we have also started sending letters by regular mail.
3
We also attempted to file the letter on the docket in order to ensure timely and proper service.
However, the filing
was rejected by the clerk, as there is no proper category for the submission of such correspondence.
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specifically advising that I was calling to discuss a proposed stipulation or order in connection
with the upcoming conference and the withdrawal of our appeal. Later that day I telephoned Mr.
Morris’ office again and spoke with his assistant Mohammed. Mohammed initially advised that
Mr. Morris was busy, but when I advised who was calling, he advised that I should send Mr. Morris
a letter. I advised that I already had. Mohammed advised that he would look for it and have Mr.
Morris call me back. I did not receive a call back.
8. Following my telephone call with Mohammed, I wrote an email to Mr. Morris. In
my email I advised Mr. Morris that:
I have written to you both by email and regular mail and have telephoned you
several times on your office and cell phone numbers to discuss the proposed order
in advance of the upcoming discovery conference. I have not heard back from you
with respect to the proposed order which I provided to you in connection with the
upcoming conference scheduled in this matter. * * *
My understanding under the current Court Rules is that I am obligated to
contact you by telephone regarding any discovery issues, but that my
obligation is excused if you refuse to respond. As noted above, I have
telephoned you several times and you have refused to respond. Pursuant to
the Court Rule, “The unreasonable failure or refusal of counsel to participate
in a conference requested by another party may relieve the requesting party
of the obligation to comply with this paragraph and may be addressed by the
imposition of sanctions pursuant to Part 130.”
I again implore you to either return the proposed order with your signature, provide
your consent with respect to a virtual conference or contact me to discuss this
matter. [Emphasis in original.]
A copy of this email is attached as Exhibit R. Having not heard back from Mr. Morris at all, I
also sent a text to Mr. Morris to let him know that I had been attempting to contact him regarding
this issue. See, text chain annexed as Exhibit U. Despite this, I dd not hear back from him.
9. On April 29, 2021, I was advised by the Court that if the parties cannot consent to
a final note of issue order or to a virtual conference being conducted, any party requiring relief
from the Court should file a motion. We were told that if Atlantic Casualty does not require any
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relief that we do not need to do anything further in connection with the conference. Since the
Court has already precluded Defendant as a result of its blatant refusal to comply with the Court’s
directives, and since the non-party subpoena we had served at that time was returnable well before
the note of issue deadline, we did not require any further assistance from the Court and, therefore,
did not do anything further at that time.
10. On June 7, 2021 – four days before Atlantic’s court-mandated deadline to file the
note of issue, Defendant’s counsel filed with the Court a subpoena and an affidavit of service
showing that the subpoena had been served on the non-party several weeks prior. As discussed in
the accompanying affirmation, the subpoena filed on June 7, 2021 contains a document request
identical to a subpoena previously served upon the same non-party witness. The subpoena was
made returnable June 17, 2021. As discussed and demonstrated in the accompanying affirmation,
the non-party responded to the prior subpoena on April 14, 2021. There is no reason to believe
that the non-party would have provided any different response to the same requests contained in
the new subpoena.
11. On June 8, 2021, I telephoned Mr. Morris’ office and spoke with his assistant
Mohammed. As soon as I gave him my name, he told me to write a letter to Mr. Morris. I advised
him that there is not enough time to mail a letter to Mr. Morris regarding the issue I need to address.
I explained to Mohammed that my note of issue deadline is coming up on June 11, 2021 and that
I needed to speak with Mr. Morris regarding the subpoena which he recently filed, which is
returnable on June 17, 2021. Mohammed advised that he would have Mr. Morris call me back. I
did not receive any return call from Mr. Morris.
12. On June 9, 2021, I called Mr. Morris’ office again. Mr. Morris himself answered
the telephone. Since I recognized his voice, I asked “is this Blake?” Mr. Morris responded, “yes,
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who is this?” I said, “hi, this is Debbie Krebs….” At that point, Mr. Morris cut me off, said “I’m
on a conference call send me a letter” and abruptly hung up without giving me any opportunity to
speak.
13. Since Mr. Morris had hung up on me and I had no other way to advise him of the
content of my attempts to communicate, I sent him a text message immediately after the call to let
him know the reason for my call. A copy of that text is included in the email chain annexed as
Exhibit U. 4
14. In light of my inability to speak with Mr. Morris, I wrote him a letter – sent by both
regular mail and by email – advising him of the issue I need to address and advising him that, since
I have been unable to speak with him about this issue, I was going to file the note of issue, as it is
our position that discovery is complete. A copy of that letter is attached as Exhibit V. I have not
heard from Mr. Morris in response to this letter.
15. On June 11, 2021 I attempted to telephone Mr. Morris’ office to let him know that
we would be filing this order to show cause on Monday, June 14, 2021. 5 As I was not able to
reach Mr. Morris by telephone, I notified him of our intention to file this order to show cause with
the Court on Monday, June 14, 2021 by letter sent by email and regular mail (see, Exhibit W) and
by text message (see, Exhibit U).
4
Because the text is recent, it does not contain a date, but instead says that it was sent on “Thursday – 9:32 AM.”
This
refers to Thursday, June 10, 2021. The text after that refersto “Friday – 9:34 AM” – that refers to Friday,
June 11, 2021.
5
We had initially intended to file this order to show cause on Friday, June 11 and had notified Mr. Morris of our
intention to do so. Copies of the emails providing such notice are annexed as part of Exhibit W. However, as the
Court can see, this motion was far more involved than we had initially anticipated, given the heavily factual nature of
the same. As a result, we changed our anticipated date to June 14, 2021.
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16. In light of the above, it is respectfully submitted that my good faith efforts to resolve
the issues addressed in this motion have failed, requiring the filing of this motion.
Dated: White Plains, New York
June 14, 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
foregoing Good Faith 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 2207, which is in compliance with NYCRR 202.8-b.
Dated: White Plains, New York
June 14, 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 06/14/2021 10:56 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/14/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ATLANTIC CASUALTY INSURANCE COMPANY, Index No.: 510798/2018 Plaintiff, v. GOOD FAITH 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. I submit this affirmation pursuant to NYCRR 202.7(c) to demonstrate the good faith attempts that we have made to resolve the issues addressed in this motion. 2. On March 19, 2021, Defendant served the undersigned with a Demand to File Note of Issue purportedly pursuant to CPLR 3216. Since the deadline for the note of issue in response to such demand is June 17, 2021, and since the Court had already directed that the note of issue be filed by June 11, 2021 – prior to that date – we did not believe anything needed to be done in response to that notice. We felt that if there was a need to extend the Court’s note of issue deadline, we would simply request that the deadline pursuant to that notice be extended in consistent fashion. 3. This matter was scheduled for a final conference on April 30, 2021. In anticipation of the conference, I telephoned Mr. Morris, counsel for Defendant, on April 6, 2021 to discuss any outstanding discovery and enter into any stipulations regarding the same and/or to obtain his 1 1 of 7 FILED: KINGS COUNTY CLERK 06/14/2021 10:56 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/14/2021 consent to a virtual conference with the Court. 1 I telephoned him at his office and left a message with his assistant, Mohammed, to have Mr. Morris call me back. I did not receive a call back. 4. In follow up to my telephone call, on April 6, 2021 I wrote a letter 2 to Mr. Morris advising him that I left a telephone message and asking that he call me back. A copy of the letter (which was sent by e-mail and regular mail) 3 is attached as Exhibit P. 5. On April 16, 2021, I telephoned Mr. Morris’s office. He has two telephone lines for his office. No one answered on either line and no voicemail system picked up. This has happened on prior occasions when I have called him. As a result, I telephoned Mr. Morris on his cell phone and left him a voicemail message to call me back. I did not receive any call in response. 6. On April 23, 2021, I wrote to Mr. Morris advising that “we 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 [enclosed with the letter], please let me know.” A copy of the letter, which was sent to Mr. Morris via email and regular mail, is attached as Exhibit Q. Mr. Morris did not respond to the letter and, as a result, did not advise us of any discovery which he claimed to be outstanding. 7. On April 27, 2021, I telephoned Mr. Morris’ office again. The first time I called, I received a busy signal. As a result, I telephoned Mr. Morris on his cell phone and left a message 1 I was also calling Mr. Morris to discuss a proposed stipulation I had sent to him seeking to withdraw our appeal which is now academic. However, since that issue is not relevant to this motion, to the extent my multiple efforts to reach Mr. Morris also sought to address that issue, it is not further addressed herein. 2 In response to a prior motion addressing Mr. Morris’ failure to respond to any of my communications, Mr. Morris argued that he has never consented to receive emails. Although his assistant was answering the phone and taking messages and although I had also left him messages on his cell phone, he argued that he was experiencing difficulties with his office phone. We do not have a fax number for Mr. Morris and have been unable to obtain one. Because he complained about other means of communications, we have also started sending letters by regular mail. 3 We also attempted to file the letter on the docket in order to ensure timely and proper service. However, the filing was rejected by the clerk, as there is no proper category for the submission of such correspondence. 2 2 of 7 FILED: KINGS COUNTY CLERK 06/14/2021 10:56 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/14/2021 specifically advising that I was calling to discuss a proposed stipulation or order in connection with the upcoming conference and the withdrawal of our appeal. Later that day I telephoned Mr. Morris’ office again and spoke with his assistant Mohammed. Mohammed initially advised that Mr. Morris was busy, but when I advised who was calling, he advised that I should send Mr. Morris a letter. I advised that I already had. Mohammed advised that he would look for it and have Mr. Morris call me back. I did not receive a call back. 8. Following my telephone call with Mohammed, I wrote an email to Mr. Morris. In my email I advised Mr. Morris that: I have written to you both by email and regular mail and have telephoned you several times on your office and cell phone numbers to discuss the proposed order in advance of the upcoming discovery conference. I have not heard back from you with respect to the proposed order which I provided to you in connection with the upcoming conference scheduled in this matter. * * * My understanding under the current Court Rules is that I am obligated to contact you by telephone regarding any discovery issues, but that my obligation is excused if you refuse to respond. As noted above, I have telephoned you several times and you have refused to respond. Pursuant to the Court Rule, “The unreasonable failure or refusal of counsel to participate in a conference requested by another party may relieve the requesting party of the obligation to comply with this paragraph and may be addressed by the imposition of sanctions pursuant to Part 130.” I again implore you to either return the proposed order with your signature, provide your consent with respect to a virtual conference or contact me to discuss this matter. [Emphasis in original.] A copy of this email is attached as Exhibit R. Having not heard back from Mr. Morris at all, I also sent a text to Mr. Morris to let him know that I had been attempting to contact him regarding this issue. See, text chain annexed as Exhibit U. Despite this, I dd not hear back from him. 9. On April 29, 2021, I was advised by the Court that if the parties cannot consent to a final note of issue order or to a virtual conference being conducted, any party requiring relief from the Court should file a motion. We were told that if Atlantic Casualty does not require any 3 3 of 7 FILED: KINGS COUNTY CLERK 06/14/2021 10:56 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/14/2021 relief that we do not need to do anything further in connection with the conference. Since the Court has already precluded Defendant as a result of its blatant refusal to comply with the Court’s directives, and since the non-party subpoena we had served at that time was returnable well before the note of issue deadline, we did not require any further assistance from the Court and, therefore, did not do anything further at that time. 10. On June 7, 2021 – four days before Atlantic’s court-mandated deadline to file the note of issue, Defendant’s counsel filed with the Court a subpoena and an affidavit of service showing that the subpoena had been served on the non-party several weeks prior. As discussed in the accompanying affirmation, the subpoena filed on June 7, 2021 contains a document request identical to a subpoena previously served upon the same non-party witness. The subpoena was made returnable June 17, 2021. As discussed and demonstrated in the accompanying affirmation, the non-party responded to the prior subpoena on April 14, 2021. There is no reason to believe that the non-party would have provided any different response to the same requests contained in the new subpoena. 11. On June 8, 2021, I telephoned Mr. Morris’ office and spoke with his assistant Mohammed. As soon as I gave him my name, he told me to write a letter to Mr. Morris. I advised him that there is not enough time to mail a letter to Mr. Morris regarding the issue I need to address. I explained to Mohammed that my note of issue deadline is coming up on June 11, 2021 and that I needed to speak with Mr. Morris regarding the subpoena which he recently filed, which is returnable on June 17, 2021. Mohammed advised that he would have Mr. Morris call me back. I did not receive any return call from Mr. Morris. 12. On June 9, 2021, I called Mr. Morris’ office again. Mr. Morris himself answered the telephone. Since I recognized his voice, I asked “is this Blake?” Mr. Morris responded, “yes, 4 4 of 7 FILED: KINGS COUNTY CLERK 06/14/2021 10:56 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/14/2021 who is this?” I said, “hi, this is Debbie Krebs….” At that point, Mr. Morris cut me off, said “I’m on a conference call send me a letter” and abruptly hung up without giving me any opportunity to speak. 13. Since Mr. Morris had hung up on me and I had no other way to advise him of the content of my attempts to communicate, I sent him a text message immediately after the call to let him know the reason for my call. A copy of that text is included in the email chain annexed as Exhibit U. 4 14. In light of my inability to speak with Mr. Morris, I wrote him a letter – sent by both regular mail and by email – advising him of the issue I need to address and advising him that, since I have been unable to speak with him about this issue, I was going to file the note of issue, as it is our position that discovery is complete. A copy of that letter is attached as Exhibit V. I have not heard from Mr. Morris in response to this letter. 15. On June 11, 2021 I attempted to telephone Mr. Morris’ office to let him know that we would be filing this order to show cause on Monday, June 14, 2021. 5 As I was not able to reach Mr. Morris by telephone, I notified him of our intention to file this order to show cause with the Court on Monday, June 14, 2021 by letter sent by email and regular mail (see, Exhibit W) and by text message (see, Exhibit U). 4 Because the text is recent, it does not contain a date, but instead says that it was sent on “Thursday – 9:32 AM.” This refers to Thursday, June 10, 2021. The text after that refersto “Friday – 9:34 AM” – that refers to Friday, June 11, 2021. 5 We had initially intended to file this order to show cause on Friday, June 11 and had notified Mr. Morris of our intention to do so. Copies of the emails providing such notice are annexed as part of Exhibit W. However, as the Court can see, this motion was far more involved than we had initially anticipated, given the heavily factual nature of the same. As a result, we changed our anticipated date to June 14, 2021. 5 5 of 7 FILED: KINGS COUNTY CLERK 06/14/2021 10:56 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/14/2021 16. In light of the above, it is respectfully submitted that my good faith efforts to resolve the issues addressed in this motion have failed, requiring the filing of this motion. Dated: White Plains, New York June 14, 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 6 6 of 7 FILED: KINGS COUNTY CLERK 06/14/2021 10:56 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/14/2021 WORD COUNT CERTIFICATION I hereby certify pursuant to 22 NYCRR 202.8-b that the total number of words in the foregoing Good Faith 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 2207, which is in compliance with NYCRR 202.8-b. Dated: White Plains, New York June 14, 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 7 7 of 7