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

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                                INDEX NO. 510798/2018
RECEIVED NYSCEF: 06/05/2021

NYSCEF DOC. NO. 268

AtTAS Part: CP cote Supreme Court of the State of
NewYork; held.in-and for the Courity of Kings at the
Courthouse thereof located. at 360, Street,

. Brooklyn, New York on 2021
Present: Hon. Lawrence. Kaipal 25C m £ %
SUPREME COURT OF THE STATE OF NEW YORK ;

COUNTY OF KINGS i
ATLANTIC CASUALTY INSURANCE Index No.: 510798/2018: :
COMPANY, i

Plaintiff, ORDER TOSHOW CAUSE
,
EASTERN FRUIT & VEGETABLES INC.

Defendant,
Upon reading and filing: the annexed affirmations of Debra M. Kiebs; Esq.,, dated

Q S june! 2021 with exhibits, and. the accompariying: memorandum of law, arid upon all tig prior
P pleadings and proceedings heretofore had herein;
LET DEFENDANT EASTERN FRUIT & VEGETABLES INC. show cause before the
Supreme Coutt of Kings.County, IAS partlh Room: i. at fe ‘ooiuthouse located. a Of
— Adaiis Siteet, Brooklyn, New York on. oh j ly | $ : 2021, spe or as soon
thereafter as counsel can bé heand” hy an-order should tiot be:made-and entered,
a) ‘pursuant to CPLR:2304 to.quash thé: subpoena which Defendant served wpa Hull
& Co., Inc, (“Hull on the basis that itis identical to ésibipoens péeviously served
upon Hull and-to which Hull responded-oi:or about April 14, 2021; and/or
‘b) pursuant to CPLR 3216-siriking Defendarit’s Demand to File:Note of Issue, filed

with this Court on Marcli 19, 2021 [NYSCEF Doc. No. 195 because, on

June 7, 2021. Defendant riotified the tindersigied that on May 19, 2021 Defendant

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served asiibpoena on Hull & Co., Inc. xeturnable-after the note of isstie deadlitie
set’by this. Court; and/or :

c) _pursiant. to CPLR. 2204 and/or. CPLR 3216 ‘and/ot 22, NYCRR § 202.21¢0,
extending Adantic Casualty Insurance Company's’ (“Atlantic Casualty”) lime to
file-a note-of issvie and ceitificate of readiness; and :

4) Pursuantto.22 NYCRR § 130-1.2 awarding-Atlantic Casualty the.costs associated
with having to make this motion.and imposing sarictions-upoi Defendant, for its
frivolous: conduct in i) setving-a subpoena: returnable. after the note of igsue
deadline; (ii) refusing. to’ speak-with the undersigned to.address their position with
respect to the impact of Defendant's pending: subpoena on Atlantic Casualty’s
ability to filethe note of issue and/ar whether the:note of issue ‘deadline. should be
extended; and (iii) abruptly "hanging up oa and refusing to speak with the

undersigned to‘addtess.this issue; and L

e) Pursuant fo CPLR 3025 seeking to amend the ad.damnum. clause in the Complaint
in light of docimenits received by the undersigned on June 9, 2021;'and

b) Granting Ad antic Casualty such other, furtlier and different rélief to plainti fas this

court deems just, equitable.and proper; and itis further

ORDERED hat service of a:copy of

‘this. Order to Show Cause, and the | Papers ope se f 0g. lave)

fris based, upon Defendant Eastern Fruit & Vegetables Inc., through its counsel, wine a'copy:

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i

:

of this-Order to Show Cause with Notice-of Entry on the docket in NYSCEF, Such servi ‘ shall
be deemed timély if the Ofder to: Show Cause” with. Notice of Eniry: is’ filed on-or. before,

June LLo90 -

ENTER:

i
2
}

 LAARENCE KNIPEL
ADMINISTRATIVE JUDGE”

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS
ATLANTIC CASUALTY INSURANCE
COMPANY,
Index No.: 510798/2018

Plaintiff,

v. EMERGENCY AFFIRMATION
REGARDING NEED FOR
EASTERN FRUIT & VEGETABLES INC. TEMPORARY RESTRAINING
ORDER
Defendant.

DEBRA M. KREBS, ESQ., an attomey duly admitted to practice law in the Courts of the
State of New Y ork, 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. I submit this emergency affirmation in support of Atlantic’s motion in order to
explain to the Court the time constraints applicable to this motion and to explain the need for a
temporary restraining order.

2. In short, as explained more fully in the accompanying memorandum of law,
Atlantic requires this relief because counsel for Defendant has created a technical issue regarding
the note of issue which could potentially cause prejudice to Atlantic. Since Defendant’s counsel
has refused to speak with the undersigned regarding this issue and, in fact, abruptly hung up on
me as soon as he heard it was me, without giving me an opportunity to speak, and without
responding to any of my attempts to address this issue, we are left in a situation where we must

request assistance from the Court to prevent potential prejudice to Atlantic.

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THE RELIEF HEREIN IS NEEDED
TO AVOID POTENTIAL PREJUDICE TO ATLANTIC

3. 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 the CPLR 3216 demand deadline - we did not believe anything
needed to be done in response to the Demand. 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 Defendant’ s Demand
be extended in consistent fashion. A copy of the Demand to File Note of Issue is attached as
Exhibit I.

4. On the very same date that Defendant served the undersigned with the CPLR 3216
Demand (March 19, 2021), Defendant filed (and, therefore served) the undersigned with a
subpoena which Defendant had served or intended to serve on Hull & Co., Inc. (“Hull”). A copy
of the subpoena is attached as Exhibit N. Since the subpoena was retumable well before the note
of issue deadline set by the Court, we did not believe this would affect our ability to file the note
of issue in this matter.

5. Hull served its responses and objections to that subpoena on or about
Apnil 14, 2021. A copy of that response is attached as Exhibit 0.

6. As discussed in the accompanying Good Faith Affirmation in Support of Motion,
this matter was scheduled for a final note of issue conference on April 30, 2021. We attempted
several times to speak with counsel for Defendant to find out whether he required any additional
discovery. He did not contact me and, as a result, we presumed he did not require any additional
discovery. We had no reason to believe that Defendant had any intention to re-serve the same
subpoena upon Hull.

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7. On June 7, 2021 Defendant’ s counsel filed another subpoena on Hull which seeks
the identical documents to the prior subpoena served on Hull, except that the retum date of the
subpoena is June 17, 2021. At the same time, Defendant filed an affidavit of service showing that
Defendant had served the subpoena on Hull on May 19, 2021 by way of service on the Secretary
of State. Copies of the subpoena and affidavit of service are attached collectively as Exhibit M.

8. It is Atlantic’s position that, since the non-party has already responded to this
subpoena, and since this is nonetheless non-party discovery, this is not discovery which would
prevent the filing of the note of issue in this matter. However, we are concemed because Defendant
filed a Demand to File Note of Issue which would require that we file the note of issue by
June 17, 2021. We are concemed that if Defendant waits until after June 17, 2021 and files a
motion seeking to vacate the note of issue, it may place Atlantic in a prejudicial position with
respect to its note of issue deadline, particularly as respects the Demand to File Note of Issue. This
is of particular concem to Atlantic because the penalty to failing to properly comply witha CPLR
3216 demand is dismissal of acomplaint. As the Court can see, we have been actively prosecuting
this matter! and, as a result, we do not wish to expose our client to the potential that the matter
could be dismissed based upon a technicality.

9. To avoid such prejudice, we ask that the Court extend the note of issue deadline
pending the hearing and determination of this application so we may have sufficient time to
determine Defendant ’s position with respect to the note of issue and to avoid prejudice to Atlantic
in the event the Court feels that the note of issue is not properly filed in light of the pending

subpoena. As noted above, although we believe the note of issue has been properly filed, we

1 The purpose of the statute under which Defendant served its Demand to File Note of Issue was only intended to
address lack of prosecution. As a result, as discussed in the accompanying papers, we believe the Demand was
improperly served.

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camnot presume that the Court will agree with such a determination, and we simply wish to avoid
prejudice to Atlantic.
10. No priorapplication has been made for the relief requested in this application.

WE HAVE PROVIDED EASTERN FRUIT
WITH NOTICE OF THIS APPLICATION

11. OnJune 11, 2021 I attempted to telephone Mr. Monis’ office to let him know that
we would be filing this order to show cause on Monday, June 14, 2021.2 As I was not able to
reach Mr. Monis 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).

12. For the reasons discussed herein, it is respectfully requested that this Court stay
and/or extend the deadline for Atlantic to file and serve a note of issue in this action, in particular
any deadline pursuant to Defendant's Demand to File Note of Issue as well as any other such
deadline, to the extent necessary, pending the hearing and determination of this motion, and grant
to Atlantic such other and further relief as to this Court may seemjust, proper and equitable.

Dated: White Plains, New Y ork
June 14, 2021

925 Westchester Avenue, Suite 400
White Plains, New Y ork 10604
Tel: (914) 948-7000

Fax: (914) 948-7010

? We had initially intended to file this order to show cause on Friday, June 11 and had notified Mr. Monis 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 aresult, we changed our anticipated date to June 14, 2021.

4

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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 1265,
which is in compliance with NY CRR 202.8-b.

Dated: White Plains, New Y ork
June 14, 2021

KEIDEL, WELDON & CUNNINGHAM, LLP

925 Westchester Avenue, Suite 400
White Plains, New Y ork 10604
Tel: (914) 948-7000

Fax: (914) 948-7010

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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 attomey duly admitted to practice law in the Courts of the
State of New Y ork, 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. Monis, 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.! I telephoned him at his office and left a message
with his assistant, Mohammed, to have Mr. Moms 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” to Mr. Monis
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)* is attached as Exhibit P.

5. On April 16, 2021, I telephoned Mr. Monis’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. Monis on his
cell phone and left hima voicemail message to call me back. I did not receive any call in response.

6. On Apnil 23, 2021, I wrote to Mr. Monis 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. Moms via email and regular mail, is
attached as Exhibit Q. Mr. Monis 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. Moms’ office again. The first time I called, I

received a busy signal. As a result, I telephoned Mr. Monis on his cell phone and left a message

11 wes also calling Mr. Mons 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. Monis also sought to address that issue, it is not further addressed herein.

2 In response to a prior motion addressing Mr. Mois’ failure to respond to any of my communications, Mr. Moris
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. Momis 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

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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.
Mons’ office again and spoke with his assistant Mohammed. Mohammed initially advised that
Mr. Moms was busy, but when I advised who wes calling, he advised that I should send Mr. Morris
aletter. I advised that I already had. Mohammed advised that he would look for it and have Mr.
Mons call me back. I did not receive a call back.

8. Following my telephone call with Mohammed, I wrote an email to Mr. Mons. In
my email I advised Mr. Monis 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.”

T again implore you to either retum 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. Monis at all, I
also sent a text to Mr. Monis 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

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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 retumable 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 retumable 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 Jume 8, 2021, I telephoned Mr. Monis’ office and spoke with his assistant
Mohammed. As soonas I gave him my name, he told me to write aletterto Mr. Mons. I advised
him that there is not enough time to mail aletterto Mr. Monis 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. Momis regarting the subpoena which he recently filed, which is
retumahle on June 17, 2021. Mohammed advised that he would have Mr. Moms call me back. I
did not receive any retum call from Mr. Monis.

12. On June 9, 2021, I called Mr. Moms’ office again. Mr. Momis himself answered

the telephone. Since I recognized his voice, I asked “is this Blake?” Mr. Moris responded, “yes,

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who is this?” I said, “hi, this is Debbie Krebs...” At that point, Mr. Momis cut me off, said “I’m
ona conference call send me a letter” and abruptly hung up without giving me any opportunity to
speak.

13. Since Mr. Momis had hung up on me and I had no other way to advise him of the
content of my attemmpts to communicate, I sent hima 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.*

14. — Inlight of my inability to speak with Mr. Monis, I wrote hima 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. Monis in response to this letter.

15. | OnJune 11, 2021 I attempted to telephone Mr. Monis’ 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. Monis 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 refers to “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. Monis 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 aresult, we changed our anticipated date to June 14, 2021.

5

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16. Inlight of theabove, itis 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 Y ork
June 14, 2021

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Keidel, Weldon & Cunningham, LLP

Attorneys for Plaintiff

Atlantic Casualty Insurance Co.
925 Westchester Avenue, Suite 400
White Plains, New Y ork 10604
Ted: (914) 948-7000

Fax: (914) 948-7010INDEX NO. 510798/2018
NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/05/2021

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 NY CRR 202.8-b.

Dated: White Plains, New Y ork
June 14, 2021
KEIDEL, WELDON & CUNNINGHAM, LLP

I~

By:

Debra M, ;, Esq.

Dela Me rats ES

Atlantic Casualty Insurance Co.
925 Westchester Avenue, Suite 400
White Plains, New Y ork 10604
Tel: (914) 948-7000

Fax: (914) 948-7010

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS
ATLANTIC CASUALTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,
v. AFFIRMATION IN

SUPPORT OF MOTION
EASTERN FRUIT & VEGETABLES INC.

Defendant.

DEBRA M. KREBS, ESQ., an attomey duly admitted to practice law in the courts of the
State of New Y ork, 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. Atlantic’s motion should be granted for the following reasons:

a) Defendant's subpoena to Hull & Co., Inc. (“Hull”) is improper because it is
identical to a subpoena which was previously served upon Hull to which a response was
served two months ago; the subpoena seeks information utterly irrelevant to this matter;
the subpoena fails to comply with CPLR 3101(a)(4); and the subpoena fails to comply with.
CPLR 3120(3).

b) Defendant's Demand to File Note of Issue is improper and should be stricken
because it was purportedly served under the authority of CPLR 3126, which, by its terms,
only penmits service of sucha notice “[w]here a party unreasonably neglects to proceed...”
As demonstrated below and in the accompanying Affirmation of Good Faith in Support of
Motion, Atlantic has been diligently prosecuting this matter. Additionally, Defendant
failed to serve the Demand as required in CPLR 3126.

° As we believe that all discovery now known to be necessary has been completed,
we filed the note of issue in this matter. However, as discussed in the accompanying
memorandum of law, we are concemed that Defendant may seek to strike the note of issue
and then claim that Atlantic’ s Complaint should be dismissed pursuant to CPLR 3216. As
weare attempting to avoid dismissal based upona technicality, we ask that the Court extend
the note of issue deadline, particularly any deadline under CPLR 3216.

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d) It is respectfully submitted that the actions of counsel for Defendant in this case
have been undertaken primarily to delay or prolong the resolution of the litigation, or to
harass or maliciously injure Atlantic. Additionally, Defendant has been repeatedly
thwarting Atlantic’s efforts to resolve issues in this matter in a good faith and amicable
fashion, requiring significant motion practice. Given these circumstances, itis respectfully
submitted that this Court should award Atlantic the costs associated with this motion (and.
other motions Atlantic has needed to make as a result of Defendant’s frivolous conduct)
and sanction Defendant accordingly.

e) The undersigned has been requesting documentation from Defendant since
October 2019 which would, among other things, permit Atlantic to properly calculate the
eamed premiums owed for the 2017 policy period. The Court twice ordered Defendant to
produce these documents. Defendant refused to do so and is, therefore, subject to a
preclusion order. Nonetheless, since we needed these documents to calculate the 2017
eamed premiums, we served a subpoena on Defendant’s accountant and, only one day
before the note of issue was due, received documents which allowed us to calculate those
premiums and which show that the actual eamed premiums are approximately $10,000
higher than what was anticipated when the Complaint was filed. We, therefore, ask that
we be pemmitted to amend the Complaint to seek recovery of the actual eamed premiums.
A proposed Amended Complaint (with redline showing the changes) is annexed as
Exhibit T.

PROCEDURAL HISTORY
A. Pleadings and Initial Motion Practice
3. The Summons and Complaint were served on Defendant June 5, 2018. Copies of
the Summons and Complaint and affidavit of service are attached collectively as Exhibit A .
4, Defendant filed an Answer on June 29, 2018. See, Answer annexed as Exhibit B.
5. On September 25, 2018, Atlantic filed a motion for summary judgment See,
NYSCEF Doc. No. 9.1 Defendant filed a cross-motion seeking to dismiss the Complaint under

CPLR 3211(a)(7) based upon Business Corporation Law §1312. See, NY SCEF Doc. No. 19.
6. By decision and order dated July 2, 2019, the Court denied both the motion and

cross-motion except to the extent that the Court dismissed Defendant’s counterclaims. See,

1 For the Court’s convenience, a printout of the docket is attached as Exhibit C.

2

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NYSCEF Doc. No. 39. With respect to BCL §1312, the Court found there was an issue of fact as
to whether that statute applied.
7. Atlantic filed a notice of appeal from that order, as it believed BCL §1312 does not

apply as a matter of law. Atlantic also filed a motion for reargument. See, NY SCEF Doc. Nos.

44 and 45. The motion to reargue was administrative marked “off” on October 30, 2021.
B. Discovery
8. On October 20, 2019, Atlantic served Defendant with interrogatories and discovery

demands. See, NY SCEF Doc. Nos. 62-64; see also, Exhibit Q.

9. When Defendant did not serve responses, we attempted speak with counsel for
Defendant to resolve this issue. He refused to retum any of my calls. Asa result, we requested a
preliminary conference. See, NY SCEF Doc. No. 71.

10. Shortly before the preliminary conference was held, Defendant filed a second
motion to dismiss under CPLR 3211(a)(7) seeking to dismiss the Complaint based upon
BCL §1312. See, NY SCEF Doc. No. 73.

11. At the preliminary conference on January 13, 2020, Defendant argued that
discovery should be stayed because of its pending motion. The Court disagreed and directed
Defendant to respond to Atlantic's discovery demands. See, Preliminary Conference Order
annexed as part of Exhibit F.

12. Atlantic was forced to file two motions seeking to compel Defendant’ s compliance
with Atlantic's discovery demands and intemogatories. See, NYSCEF Doc. No. 122 and 162.
These motions were required because Defendant refused to make any effort to resolve the
discovery issues and, to the contrary, generally ignored our efforts to even discuss the same.

Copies of the affirmations submitted with each of those motions discussing our good faith efforts

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and, in particular, the fact that Defendant's counsel refused to speak with the undersigned, are
attached collectively as Exhibit E.?

13. In response to each of these motions, the Court issued two orders compelling
Defendant to provide documents insofar as the documents seek materials during the contract
periods, 2016 and 2017. Copies of those orders (dated November 4, 2020 and February 25, 2021
respectively) are attached collectively as Exhibit F. The November 4, 2020 order directs that the
note of issue be filed by June 11, 2021. Id.

14. As there was a clear typographical enor in the February 25, 2021 order, we
attempted to contact Defendant’ s counsel to stipulate to correct the order. However, Defendant’s
counsel again refused to respond to any of my efforts to communicate, requiring that we file a
motion to correct that order. See, NYSCEF Doc. No. 186; see also, Affirmation annexed hereto
as Exhibit G.° That motion was granted. See, NYSCEF Doc. No. 205. See, copy of order
annexed as part of Exhibit F.

15. _ Inits order dated February 25, 2021 (as corrected by order dated March 19, 2021)
the Court directed that Defendant respond to Atlantic’s discovery demands and provide an
authorization for Defendant’s tax retums by March 31, 2021 or be precluded. See, discovery
orders annexed collectively as Exhibit F. By letter dated March 31, 2021 Defendant expressly

advised that it declined to produce the ordered documents. See, Exhibit H.

2 Since the exhibits were attached to the primary affirmation, the exhibits referenced in these affirmations are not all
of the exhibits and are, therefore, not in consecutive order. We annex only those exhibits which were referenced in
each of the attached affirmations.

3 We do not include here all exhibits, as they are duplicative of other exhibits herein or are not relevant. However, we

include Exhibit E annexed to the affirmation to demonstrate our attempted communications with counsel for
Defendant.

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Cc. Defendant's Service of a Demand to File Note of Issue
16. On March 19, 2021 Defendant filed a Demand to File Note of Issue purportedly

pursuant to CPLR 3216. See, Exhibit I.

17. Although we believe the Demand is improper, we did not seek to strike the Demand
at that time because we felt that such additional motion practice was unnecessary given that the
court-ordered deadline to file the note of issue is earlier than the deadline under this Demand and
because we were nonetheless on target to be able to file the note of issue within the demanded 90
days.

D. Defendant's Additional Delay

18. Since Defendant had filed a second motion to dismiss, in addition to opposing that
motion, Atlantic sought to restore its prior motion for reargument which had been marked “off.”
See, NYSCEF Doc. No. 85. In response to that motion and cross-motion the Court granted
reargument, and, upon reargument, the Court modified the prior order to find that BCL §1312 does
not apply as a matter of law, and dismissed Defendant's affirmative defenses based upon that
statute. The Court also noted in its decision that a party may not move to dismiss pursuant to
CPLR 3211 more than once. See, NY SCEF Doc. No. 211 at p. 2.

19. Since Atlantic’s brief to the Appellate Division was limited to the same argument
Atlantic raised to this Court in its motion to reargue, we attempted to withdraw the appeal. We
were advised by the Appellate Division that we would need a stipulation from the Defendant in
order to withdraw the appeal. We attempted to contact Defendant’ s counsel on several occasions.
The only time Defendant’ s counsel answered my phone call, he advised that he would look formy

letter requesting the withdrawal and would get back to me, but never did. As a result, we were

5 of 9NYSCEF DOC. NO. 230

forced to file a motion seeking to withdraw our now-academic appeal. Copies of the Notice of
Motion and Affirmation in Support are annexed collectively as Exhibit J .

E. Information Recently Obtained to Calculate 2017 Earned Premiums

20. Although we appreciated that the Court was attempting to protect Atlantic by
ordering preclusion, the documents we had requested from Defendant were also needed in order
to calculate the actual eamed policy premium for the 2017 policy period (as well as confirm
information provided pre-suit as to the 2016 policy period). In particular, as discussed in the policy
(attached as part of Exhibit K at ACIC 0101), Atlantic is permitted to calculate the premiums

based upon the insured’s actual gross receipts during the policy period. Since Defendant refused

to produce the documents showing these amounts (despite three orders requiring them), Atlantic
was forced to incur the additional expenses associated with serving a subpoena on Defendant’ s

accountant to request such documents.

21. On June 9, 2021, the accountant provided us with a copy of the general ledger
needed to calculate the eamed premiums for the 2017 policy.* A copy of the email from the
accountant providing the relevant document is attached as Exhibit L. Annexed as part of
Exhibit L is the general ledger produced by the accountant.°

22. Based upon the information contained in the general ledger, Atlantic calculated that
the eamed premium for the 2017 policy period should have been $40,047, plus taxes in the amount
of $1,173.49 and fees in the amount of $55.41 for total eamed premium of $41,275.9. Since

Defendant paid $7,450, the total premium still owed on the 2017 policy is $33,825.90. The manner

4 When I spoke with the accountant ’s assistant, Falak Huque, about responding to the subpoena, she advised that she
had previously produced the requested documents to counsel for Defendant.

5 Pursuant to the court mules, the full attachment provided by the accountant is not reproduced here. However, we are
providing a copy of the full document to the Court separately and will provide a courtesy copy to Defendant’ s counsel.

6

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in which this was calculated is discussed more fully in the accompanying affirmation of Suzanne
Parish. Since Atlantic had previously only estimated the 2017 eamings based upon Defendant’ s
2016 eamings, the Complaint sought only $23,238 (calculated based upon an anticipated eamed
premium of $30,688.55, less the $7,450 paid). Since we have just received information
demonstrating that the actual amount is higher than what was sought in the Complaint, we seek to
amend the ad dannum in the Complaint to request the correct amount of outstanding eamed
premium. In particular, we request permission to amend the ad dannum to seek a total of
$103,728,998 - i.e., $69,903.09 owed under the 2016 policy, plus $33,825.90 owed under the 2017
policy.

F. Defendant's Pending Subpoena

23. As discussed in the accompanying affirmations, on June 7, 2021 Defendant's
counsel filed a copy of a subpoena which he had served on Hull & Co., Inc. (“Hull”) along with
an affidavit of service demonstrating that the subpoena had been served on May 19, 2021. See,
Exhibit M. This was Atlantic’ s first notice of the subpoena.

24. This subpoena seeks the identical documents from Hull as a subpoena which
Defendant’ s counsel served upon Hull in or around March 2021. Compare, March 2021 Subpoena
(Exhibit N) and May 2021 Subpoena (Exhibit M).

25. Hull responded to the March 2021 Subpoena by response dated April 14, 2021.
See, Exhibit 0. Among other bases, Hull objected to the subpoena in its entirety as it “does not
purport to describe the relevancy of the documents requested, as required by CPLR 3101(a)(4)....”
Id. at General Objections §B. Hull objected to each of the demands on the basis that the subpoena

© The original complaint also seeks interest from the due dates thereof, plus the costs and disbursements of this action.
We intend to re-assert those requests.

7 of 9NYSCEF DOC. NO. 230

“does not seek documents which are material and necessary to the lawsuit and is not reasonably
calculated to lead to the discovery of relevant evidence...” See, Exhibit O at responses 1-3.

G. Note of Issue

26.  Asnoted above, the Court's order dated November 4, 2020 directs that the note of
issue be filed by June 11, 2021. See, Exhibit F.

27. As discussed in the accompanying memorandum of law, it is Atlantic’s position
that all discovery known to be necessary to this matter has been completed. As a result, we filed
the note of issue. Copies of the Note of Issue and Certificate of Readiness are annexed collectively
as Exhibit S.

28. For the reasons discussed herein and in the accompanying documents, 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

June 14, 2021
Keidel, Weldon & Cunningham, LLP

Attorneys for Plaintiff

Atlantic Insurance Co.

925 Westchester Avenue, Suite 400
White Plains, New Y ork 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 2563,
which is in compliance with NY CRR 202.8-b.

Dated: White Plains, New Y ork

June 14, 2021

KEIDEL, WELDON & CUNNINGHAM, LLP

White Plains, New Y ork 10604
Tel: (914) 948-7000
Fax: (914) 948-7010

9 of 9INDEX NO. 510798/2018
NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 06/05/2021

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS
ATLANTIC CASUALTY INSURANCE Index No.: 510798/2018
COMPANY,
Hon. Ingrid Joseph, J.S.C.
Plaintiff,
AFFIDAVIT OF SUZANNE
v. PARRISH

EASTERN FRUIT & VEGETABLES INC.

Defendant.

STATE OF NORTH CAROLINA _ )
COUNTY OF WAYNE ~

SUZANNE PARRISH, being duly sworn, deposes and states:

1. I am the premium audit manager for Plaintiff, Atlantic Casualty Insurance
Company (“Atlantic”) in the above matter. As such, and based upon my review of the
documents referenced herein, I am fully familiar with the facts set forth in this affidavit.

2. In a prior affidavit submitted in connection with this lawsuit, I described how the
premiums for the 2016 and 2017 policies issued to Defendant Eastern Fruit & Vegetables Inc.
(“Defendant”) were calculated.

3. By way of summary, the 2016 policy was calculated based upon anticipated
earnings during the policy period. In particular, the earnings were anticipated to be $250,000 —
as a result, this was the earnings basis that was used to calculate the minimum deposit premium
for the 2016 policy.

4. After the 2016 policy expired, the policy was audited and it was determined that
Defendant’s actual earnings during the policy period totaled $2,775,356 — more than 11 times the
anticipated earnings. The premiums for the 2016 policy were recalculated on the basis of the

audit and the insured was asked to pay the outstanding portion of that premium.

1

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5. Since the audit took place after the policy had already renewed for the 2017
policy period, the premium for the 2017 policy was initially calculated based upon anticipated
earnings of $250,000.

6. Once it was discovered that Defendant’s actual earnings were more than 11 times
higher than the anticipated earnings, an endorsement was issued on the 2017 policy
re-calculating the minimum deposit premium based upon more realistic anticipated earnings —
i.e. Defendant’s actual earnings from the 2016 policy period.

7. When Defendant did not pay that the recalculated minimum deposit premium, the
policy was canceled.

8. Since the policy was canceled, Atlantic would only be entitled to recover the
premium for the period during which coverage was in force (i.e. April 17, 2017 to
October 3, 2017). At that time, the earned premium was calculated and the initial premium
amount charged to the insured was deducted from the earned premium to arrive at a balance due
of $23,238.00 — the amount sought in the Complaint with respect to the 2017 policy. However,
as noted above, this amount was calculated based upon anticipated earnings, rather than actual
earnings.

9. We are told that our counsel has obtained a copy of Defendant’s general ledger
for 2017 from Defendant’s accountant. I have reviewed a copy of that general ledger, which is
attached to the accompanying papers.! This provides the information we would need in order to
calculate the earned premium based upon the insured’s actual earnings.

10. Based upon my review of this document, it appears that Defendant’s earnings for

the period from April 17, 2017 to October 3, 2017 (the period during which the 2017 policy was

' | was provided with the full ledger which I am told is being provided separately to the Court in hard copy, but
those additional pages are not relevant to my calculations.

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NYSCEF DOC. NO. 238

in force), totalled $1,369,784. Based upon these earnings, I calculated that the total earned
premium (not including taxes and fees) is $40,047. Crediting Defendant the amount of $7,450

tially charged to Defendant), the total premium still owed by Defendant for the

(the premium

eared portion of the 2017 policy period is $32,597, plus taxes in the amount of $1,173.49 and
fees in the amount of $55.41 for total outstanding balance due on the 2017 policy in the amount
of $33,825.90.

11. Since Atlantic is still owed the sum of $69,903.09 for the 2016 policy period, and,

as discussed above. is owed the amount of $33,825.90 for the 2017 policy period, the total

balance due Atlantic is $103,728.99
12 In light of the above, Atlantic requests permission to amend its Complaint to seek

recovery in this lawsuit in the amount of $103,728.99, plus interest from the due dates for each

of these premiums, plus the costs and disbursements of this action.

Doertscrse Lasaer
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30f 5INDEX NO. 510798/2018
RECEIVED NYSCEF: 06/05/2021

NYSCEF DOC. NO. 238

G.S. § 10B-41 NOTARIAL CERTIFICATE FOR
ACKNOWLEDGMENT

Pi County, North Carolina

I certify that the following person(s) personally appeared before me this day, each

acknowledging to me that he or she signed the foregoing document:

Supanne_Pavvish

Date: \p \ 207\

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Name(s) of principal(s)

I signed this notarial certificate on le according to the emergency video notarization

requirements contained in G.S. 10B-25.

rolin ith county
> ok Lan Ne. County
OPTIONAL

This certificate is attached toa APFIDQMBE LACES, siened by Suzanne Pavvis h

Title/Type of Document ‘Name of Principal Signer(s)

on lus |2021 , and includes Ht pages. linduaing this page)

Dake pages

Notary Public location during video notarization:
Stated physical location of principal during video notarization

40f 5v ia ma D INDEX NO. 510798/2018
NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 08/05/2021

CERTIFICATE OF CONFORMITY

I, My Vissa Dyg yY)___. an attorney at law admitted to practice in the State
of North Carolina, am fully acquainted with the laws of the State of North Carolina pertaining to
the requirements needed for oaths and affirmations to be taken before Notary Publics in the State
of North Carolina.

I do hereby certify that I am duly qualified to make this certificate of conformity. I am
familiar with the process through which the oath and affirmation in the accompanying affidavit
were taken by Miriam Tello, a notary public in the State of North Carolina, and hereby certify that
the same fully and completely conforms with the manner prescribed by the laws of the State of
North Carolina and, more specifically, conforms to the laws thereof in all respects.

Thave hereunto set my signature, on day, June iC 2021.

Mycisse Dixon
Print Name:

Attorney at Law
State of North Carolina

N.C. State Bar No._ 3432

5 of 5INDEX NO. 510798/2018
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASUALTY INSURANCE
COMPANY,

Index No.: 510798/2018
Plaintiff,

v.
EASTERN FRUIT & VEGETABLES INC.

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF
ATLANTIC CASUALTY INSURANCE COMPANY’S
ORDER TO SHOW CAUSE

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TABLE OF CONTENTS
TABLE OF AUTHORITIES 00.0... cescescesecseesseseeseeseesessessessessessessessseeseeseeaeesessesaeenesessesaeeseeaeeneenees ii
PRELIMINARY STATEMENT ...0...cececesssecessessesesesseseseescssssessesseeaeesessesuesseseseetsaneseeaseneeneaee 1
ARGUMENT
POINT I — THIS COURT SHOULD QUASH THE SUBPOENA SERVED ON NON-
PARTY HULL AS IT VIOLATES THE CPLR AND DOES NOT SEEK
RELEVANT EVIDENCE ..0.....cececcsessessessessesessesseseseceeeaeeseeseeseenessesssssesteseeseeaseseeseanes 3
A. The Subpoena is Defective ........cccccseceseeeseseseeeseeeeseeeeeeeeeeseeeeeeeseseeeeseees 3
B. The Information Sought in the Subpoena is Irrelevant... eee eeteeeteeeeeeeneee 4
Cc. The Subpoena is Duplicative 0... cccceceeseseseseeseesescseeesceesceescaescecscaeaceeseesaceeaceeee 10
Dz. Defendant Failed to Comply With CPLR 3120 .....cccecceeseseseeeseeseeseeseeeseeeneecee i
POINT II THIS COURT SHOULD STRIKE DEFENDANT’S DEMAND TO FILE
OTE OF ISSUE... escesceseeseesseseesessecsecsessesseeneesessessesssecssestsseesesseenesnesseesseneseeseeeseaee 12
POINT III— THIS COURT SHOULD EXTEND ATLANTIC’S DEADLINE TO FILE
ITS NOTE OF ISSUE AND CERTIFICATE OF READINESS ...........ceseeseeseeeee 14
POINT IV — THIS COURT SHOULD AWARD ATLANTIC THE COSTS OF THE
PRESENT MOTION AND ISSUE SANCTIONS AGAINST
DEFENDANT o.oo. eecessessessesseesesesessesseseeeesaeesessesseesessesscesestesessssaeesessesaeeneseeseeneaee 16
POINT V— THIS COURT SHOULD GRANT ATLANTIC LEAVE TO AMEND ITS
COMPLAINT 00... eeceececececsesseesesesessessseeseeaeesessesseesessessesssesseesseaeesessesseensseseaneaee 19
CONCLUSION Qo .oeeccecceseceeseesecsessesseesessessesscssscsesaessessesaeesessessessssussssssasaesseeateaseseaseenseneseseaneaee 21

2 of 26INDEX NO. 510798/2018

NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 06/05/2021
TABLE OF AUTHORITIES
Cases
3405 Putnam Realty Corp. v Chubb Custom Ins. Co., 14 AD3d 310 [1st Dept 2005]... eee 8

Am. Heritage Realty LLC v Strathmore Ins. Co., 101 AD3d 1522 [3d Dept 2012]...

Capacity Group of NY, LLC v Duni, 186 AD3d 1482 [2d Dept 2020]... cccccccssceseeseeeeseeeeenees 3

Celentano v Furci's Rest. Bar & Grill, 49 Misc 2d 289 [Sup Ct, Kings County 1966]..

Certain Underwriters at Lloyd's v Plasmanet Inc., 2002 US Dist LEXIS 14190 [SDNY 2002]... 8

Dicenso v Wallin, 109 AD3d 508 [2d Dept 2013]... ceeccsesceeseeseesessesseeseeaessessesesesesnesneanenees 3,4
First Union Natl. Bank v Tecklenburg, 2 AD3d 575 [2d Dept 2003]... eeeeseesseeseeesessesesteees 7
Friel v. Papa, 87 A.D.3d 1108 [2d Dept 2011) oi iecsceseseseeseesesstsseesesssssessessesneseseseeneseseee 4
Gandham v Gandham, 170 AD3d 964 [2d Dept 2019]... eeccccesssseseesesesseseeeseseseeseseeecseneeeeseneenees 4
Garan v Don & Walt Sutton Bldrs., Inc., 27 AD3d 521 [2d Dept 2006]... ccececesseseseeseeeeee 17
Leggio v Leggio, 183 AD2d 815 [2d Dept 1992]...
Levy v Carol Met. Corp., 260 AD2d 27 [1st Dept 1999] oo... ccccscssceseeseeseesseseessesscsscseesseeees 16
Lizardi v