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FILED: KINGS COUNTY CLERK 08/05/2021 04:36 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021
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”), 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. The reason for this motion is to seek clarification or any necessary revisions to the
Court’s order dated July 1, 2021 (entered on July 7, 2021 (the “7/7/21 Order”)). In particular,
although Atlantic filed the note of issue (the “6/11/21 Note of Issue”) on June 11, 2021 and it has
never been stricken, the 7/7/21 Order states “[t]ime to file the note of issue is extended to 1-21-
22.” See, Exhibit 1. We were unclear as to why the order contains this statement or what impact
it might have.
3. As a result, we file the present motion seeking an order:
(a) pursuant to CPLR 2001 and/or 5019 and/or any other appropriate rule of law or
equity, clarifying and/or correcting the 7/7/21 Order and/or for renewal and/or
reargument pursuant to CPLR 2221,
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i. clarifying that, absent a future order to the contrary, Atlantic’s 6/11/21
Note of Issue, remains in effect and that Atlantic is not obligated to file
any further notes of issue in this matter in order to comply with this
Court’s deadline to do the same, Defendant’s Demand to File Note of
Issue, or otherwise; or, in the alternative
ii. if this Court intended to vacate Atlantic’s 6/11/21 Note of Issue, and/or
otherwise treat it as ineffective, striking Defendant’s Demand to File
Note of Issue; and
(b) granting such other and further relief as this Court deems just, equitable and
proper.
EXHIBITS
4. A copy of the 7/7/21 Order, with notice of entry, is annexed hereto as Exhibit 1.
5. A copy of Atlantic’s Order to Show Cause, signed and dated by the Court on
June 15, 2021, together with the supporting papers thereto (Atlantic’s “Order to Show Cause”) is
annexed hereto as Exhibit 2.
6. A copy of Defendant’s papers in opposition to Atlantic’s Order to Show Cause
(Defendant’s “Opposition to OSC”) is annexed hereto as Exhibit 3.
7. A copy of Atlantic’s papers in reply to its Order to Show Cause (Atlantic’s “Reply
to OSC”) is annexed hereto as Exhibit 4.
8. A copy of Defendant’s motion to compel Hull and Company of New York to
respond to its subpoena, dated June 18, 2021 (Defendant’s “Motion”) is annexed hereto as
Exhibit 5.
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9. A copy of Atlantic’s papers in opposition to Defendant’s Motion (Atlantic’s
“Opposition to Defendant’s Motion”) is annexed hereto as Exhibit 6.
10. A copy of Non-Party Hull & Co of NY, Inc.’s (“Hull”) papers in opposition to
Defendant’s Motion, (Hull’s “Opposition to Defendant’s Motion”) is annexed hereto as Exhibit 7.
11. A copy of Defendant’s Reply to its Motion is annexed hereto as Exhibit 8.
12. Upon information and belief, Exhibit 2 through Exhibit 7 constitute all papers
submitted to and/or considered by this Court in connection with the 7/7/21 Order.
PROCEDURAL HISTORY
13. By order, dated November 4, 2020 (the “11/4/20 Order”), this Court directed that
the note of issue be filed by June 11, 2021 (see 11/4/20 Order, part of Exhibit “F” to Exhibit 2).
14. On March 19, 2021, Defendant filed a Demand to File Note of Issue demanding
that Atlantic file its note of issue within ninety days (i.e. by June 17, 2021) (see Demand to File
Note of Issue, Exhibit “I” to Exhibit 2).
15. The Final Pre-Note of Issue Conference was scheduled for April 30, 2021.
16. Per this Court’s Rules, on April 23, 2021, we wrote to counsel for Defendant
advising that we were not aware of any outstanding discovery and requesting that Defendant
consent to our proposed Final Pre-Note Order (see April 23, 2021 Email and Letter, Exhibit “Q”
to Exhibit 2). Having not received any response from Defendant’s counsel, we followed up by
email on April 27, 2021, (see April 27, 2021 Email, Exhibit “R” to Exhibit 2). Defendant’s
counsel never responded to this query or consented to the proposed order. Per this Court’s rules,
the final pre-note conference did not go forward and no final pre-note order was ever issued.
17. On June 7, 2021, we learned that, on May 19, 2021, Defendant had served Hull
with a subpoena (the “Second Subpoena”), purportedly returnable on June 17, 2021. In addition
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to the fact that the Second Subpoena was substantially identical to a prior subpoena to which Hull
had already served its response, we also later learned that Hull responded to the May 19, 2021
subpoena on June 9, 2021, before the note of issue was filed. A copy of Hull’s response is attached
as Exhibit “D” to Exhibit 5.
18. On June 11, 2021, we filed and served the 6/11/21 Note of Issue and paid the
applicable fee (see 6/11/21 Note of Issue, Exhibit “S” to Exhibit 2).
19. On June 14, 2021, we filed Atlantic’s Order to Show Cause (see Order to Show
Cause, part of Exhibit 2). In the Order to Show Cause, Atlantic requested an extension of time to
file the note of issue, explaining that this was only a preemptive measure, as we were unaware at
the time that Hull had responded to Defendant’s subpoena and we were concerned that Defendant
was going to seek to strike the note of issue and claim that Atlantic had failed to comply with
Defendant’s Demand to File Note of Issue.
20. Because the Order to Show Cause was returnable on the same day as the deadline
for Defendant to seek to strike the note of issue, we were unable to determine before the Order to
Show Cause was decided whether the request to extend would be necessary (i.e., it would only be
necessary if Defendant had filed a motion to strike the note of issue).
21. On July 1, 2021, this Court decided Atlantic’s Order to Show Cause and
Defendant’s Motion, extending Atlantic’s time to file the note of issue to January 21, 2022, and
compelling Hull to respond to respond to the Second Subpoena, subject to a confidentiality order
to be worked out by the parties (see 7/7/21 Order, Exhibit 1).
22. However, the time for Defendant to seek to vacate the note of issue has now passed
without Defendant seeking to do so (see 22 NYCRR 202.21(e); Note of Issue, Exhibit “S” to
Exhibit 2). Since Defendant never sought to strike the note of issue, and the note of issue was
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never actually stricken, the reference to the extension of the note of issue deadline in the 7/7/21
Order is potentially confusing.
NEED FOR CLARIFICATION, REARGUMENT AND/OR RENEWAL
23. Although our Order to Show Cause requested that the note of issue deadline be
extended, the supporting papers explained that we only sought this extension because we were
concerned that Defendant might seek to vacate the note of issue (see Memorandum of Law in
Support at pp. 14-15, part of Exhibit 2). We would not ordinarily file a preemptive motion, but it
became procedurally necessary in order to protect Atlantic as a result of a procedural anomaly in
this case, whereby Defendant served a Demand to File Note of Issue and then served a subpoena
which was due after the court-ordered note of issue deadline. We believe the Court may have
misunderstood that our request to extend the discovery deadline was only needed if the note of
issue was stricken, and/or we believe the Court overlooked that the return date of the motion was
the final date on which Defendant could do so.
24. Since the note of issue has not, in fact, been vacated, it leaves us with a situation
where we have a filed note of issue and an extended time to file the note of issue.
25. We are concerned that the 7/7/21 Order could potentially be construed as implicitly
finding that Atlantic’s 6/11/21 Note of Issue is vacated and/or void. This is particularly true since
the 7/7/21 Order applies a pre-note of issue standard with respect to the issue concerning the Hull
subpoena and/or orders post-note discovery without referencing any post-note of issue standard.
Although we are not seeking to reconsider the portion of the order compelling discovery, we are
concerned about what this may mean to the interpretation of other aspects of the order.
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26. Since the filing of the note of issue has certain procedural implications, including
issues relating to Defendant’s Demand to File a Note of Issue, we would like to clarify that
Atlantic’s 6/11/21 Note of Issue remains intact, and that no further note of issue needs to be filed.
27. To the extent this Court appears to have overlooked the fact that Atlantic had
already filed a note of issue and that there was not ultimately any motion filed seeking to strike
that note of issue, we seek leave to reargue the 7/7/21 Order, and, upon reargument have this Court
correct the 7/7/21 Order to clarify that, since the note of issue remains filed and has not been
stricken, Atlantic has no further obligation to file a note of issue. As discussed above, it is clear
that Atlantic had, in fact, filed a note of issue (see Note of Issue, Exhibit “S” to Exhibit 2; NYSCEF
Docket Entry No. 223). Alternatively, if the Court intended to strike the note of issue, it is
respectfully requested that, upon reargument, the Court also strike Defendant’s Demand to File
Note of Issue so that Atlantic does not get ensnared in a procedural trap as a result of the same.
28. Further, renewal is appropriate because, at the time the Order to Show Cause was
briefed and the Court issued the 7/7/21 Order, Defendant’s time to move to vacate the 6/11/21
Note of Issue had not technically run, since Defendant still could have filed its motion later that
day, and there remained a risk that Atlantic’s 6/11/21 Note of Issue could still be vacated (see 22
NYCRR 202.21(e); Note of Issue, Exhibit “S” to Exhibit 2). Since it is now clear that Defendant
has not moved to vacate the 6/11/21 Note of Issue, this is a new fact which should be considered
by the Court and, in light of this new fact and since the note of issue has not been vacated, there is
no need for an extension of Atlantic’s time to file the same.
29. Clarification of this issue will help avoid future confusion regarding the status of
this case, Atlantic’s obligation to file a further note of issue and whether and/or when deadlines
triggered by the filing of a note of issue began to run.
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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
August 5, 2021
Keidel, Weldon & Cunningham, LLP
By: ________________________________
Debra M. Krebs, Esq.
Attorneys for Plaintiff
Atlantic Casualty Insurance Co.
925 Westchester Avenue, Suite 400
White Plains, New York 10604
Tel: (914) 948-7000
Fax: (914) 948-7010
TO: L. Blake Morris, Esq.
L. Blake Morris & Associates
Attorneys for Defendant
Eastern Fruit & Vegetables, Inc.
1214 Cortelyou Road
Brooklyn, New York 11218
Tel: (718) 826-8401
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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 1,810 which is in compliance with NYCRR 202.8-b.
Dated: White Plains, New York
August 5, 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 08/05/2021 04:36 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021 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”), 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. The reason for this motion is to seek clarification or any necessary revisions to the Court’s order dated July 1, 2021 (entered on July 7, 2021 (the “7/7/21 Order”)). In particular, although Atlantic filed the note of issue (the “6/11/21 Note of Issue”) on June 11, 2021 and it has never been stricken, the 7/7/21 Order states “[t]ime to file the note of issue is extended to 1-21- 22.” See, Exhibit 1. We were unclear as to why the order contains this statement or what impact it might have. 3. As a result, we file the present motion seeking an order: (a) pursuant to CPLR 2001 and/or 5019 and/or any other appropriate rule of law or equity, clarifying and/or correcting the 7/7/21 Order and/or for renewal and/or reargument pursuant to CPLR 2221, 1 1 of 8 FILED: KINGS COUNTY CLERK 08/05/2021 04:36 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021 i. clarifying that, absent a future order to the contrary, Atlantic’s 6/11/21 Note of Issue, remains in effect and that Atlantic is not obligated to file any further notes of issue in this matter in order to comply with this Court’s deadline to do the same, Defendant’s Demand to File Note of Issue, or otherwise; or, in the alternative ii. if this Court intended to vacate Atlantic’s 6/11/21 Note of Issue, and/or otherwise treat it as ineffective, striking Defendant’s Demand to File Note of Issue; and (b) granting such other and further relief as this Court deems just, equitable and proper. EXHIBITS 4. A copy of the 7/7/21 Order, with notice of entry, is annexed hereto as Exhibit 1. 5. A copy of Atlantic’s Order to Show Cause, signed and dated by the Court on June 15, 2021, together with the supporting papers thereto (Atlantic’s “Order to Show Cause”) is annexed hereto as Exhibit 2. 6. A copy of Defendant’s papers in opposition to Atlantic’s Order to Show Cause (Defendant’s “Opposition to OSC”) is annexed hereto as Exhibit 3. 7. A copy of Atlantic’s papers in reply to its Order to Show Cause (Atlantic’s “Reply to OSC”) is annexed hereto as Exhibit 4. 8. A copy of Defendant’s motion to compel Hull and Company of New York to respond to its subpoena, dated June 18, 2021 (Defendant’s “Motion”) is annexed hereto as Exhibit 5. 2 2 of 8 FILED: KINGS COUNTY CLERK 08/05/2021 04:36 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021 9. A copy of Atlantic’s papers in opposition to Defendant’s Motion (Atlantic’s “Opposition to Defendant’s Motion”) is annexed hereto as Exhibit 6. 10. A copy of Non-Party Hull & Co of NY, Inc.’s (“Hull”) papers in opposition to Defendant’s Motion, (Hull’s “Opposition to Defendant’s Motion”) is annexed hereto as Exhibit 7. 11. A copy of Defendant’s Reply to its Motion is annexed hereto as Exhibit 8. 12. Upon information and belief, Exhibit 2 through Exhibit 7 constitute all papers submitted to and/or considered by this Court in connection with the 7/7/21 Order. PROCEDURAL HISTORY 13. By order, dated November 4, 2020 (the “11/4/20 Order”), this Court directed that the note of issue be filed by June 11, 2021 (see 11/4/20 Order, part of Exhibit “F” to Exhibit 2). 14. On March 19, 2021, Defendant filed a Demand to File Note of Issue demanding that Atlantic file its note of issue within ninety days (i.e. by June 17, 2021) (see Demand to File Note of Issue, Exhibit “I” to Exhibit 2). 15. The Final Pre-Note of Issue Conference was scheduled for April 30, 2021. 16. Per this Court’s Rules, on April 23, 2021, we wrote to counsel for Defendant advising that we were not aware of any outstanding discovery and requesting that Defendant consent to our proposed Final Pre-Note Order (see April 23, 2021 Email and Letter, Exhibit “Q” to Exhibit 2). Having not received any response from Defendant’s counsel, we followed up by email on April 27, 2021, (see April 27, 2021 Email, Exhibit “R” to Exhibit 2). Defendant’s counsel never responded to this query or consented to the proposed order. Per this Court’s rules, the final pre-note conference did not go forward and no final pre-note order was ever issued. 17. On June 7, 2021, we learned that, on May 19, 2021, Defendant had served Hull with a subpoena (the “Second Subpoena”), purportedly returnable on June 17, 2021. In addition 3 3 of 8 FILED: KINGS COUNTY CLERK 08/05/2021 04:36 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021 to the fact that the Second Subpoena was substantially identical to a prior subpoena to which Hull had already served its response, we also later learned that Hull responded to the May 19, 2021 subpoena on June 9, 2021, before the note of issue was filed. A copy of Hull’s response is attached as Exhibit “D” to Exhibit 5. 18. On June 11, 2021, we filed and served the 6/11/21 Note of Issue and paid the applicable fee (see 6/11/21 Note of Issue, Exhibit “S” to Exhibit 2). 19. On June 14, 2021, we filed Atlantic’s Order to Show Cause (see Order to Show Cause, part of Exhibit 2). In the Order to Show Cause, Atlantic requested an extension of time to file the note of issue, explaining that this was only a preemptive measure, as we were unaware at the time that Hull had responded to Defendant’s subpoena and we were concerned that Defendant was going to seek to strike the note of issue and claim that Atlantic had failed to comply with Defendant’s Demand to File Note of Issue. 20. Because the Order to Show Cause was returnable on the same day as the deadline for Defendant to seek to strike the note of issue, we were unable to determine before the Order to Show Cause was decided whether the request to extend would be necessary (i.e., it would only be necessary if Defendant had filed a motion to strike the note of issue). 21. On July 1, 2021, this Court decided Atlantic’s Order to Show Cause and Defendant’s Motion, extending Atlantic’s time to file the note of issue to January 21, 2022, and compelling Hull to respond to respond to the Second Subpoena, subject to a confidentiality order to be worked out by the parties (see 7/7/21 Order, Exhibit 1). 22. However, the time for Defendant to seek to vacate the note of issue has now passed without Defendant seeking to do so (see 22 NYCRR 202.21(e); Note of Issue, Exhibit “S” to Exhibit 2). Since Defendant never sought to strike the note of issue, and the note of issue was 4 4 of 8 FILED: KINGS COUNTY CLERK 08/05/2021 04:36 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021 never actually stricken, the reference to the extension of the note of issue deadline in the 7/7/21 Order is potentially confusing. NEED FOR CLARIFICATION, REARGUMENT AND/OR RENEWAL 23. Although our Order to Show Cause requested that the note of issue deadline be extended, the supporting papers explained that we only sought this extension because we were concerned that Defendant might seek to vacate the note of issue (see Memorandum of Law in Support at pp. 14-15, part of Exhibit 2). We would not ordinarily file a preemptive motion, but it became procedurally necessary in order to protect Atlantic as a result of a procedural anomaly in this case, whereby Defendant served a Demand to File Note of Issue and then served a subpoena which was due after the court-ordered note of issue deadline. We believe the Court may have misunderstood that our request to extend the discovery deadline was only needed if the note of issue was stricken, and/or we believe the Court overlooked that the return date of the motion was the final date on which Defendant could do so. 24. Since the note of issue has not, in fact, been vacated, it leaves us with a situation where we have a filed note of issue and an extended time to file the note of issue. 25. We are concerned that the 7/7/21 Order could potentially be construed as implicitly finding that Atlantic’s 6/11/21 Note of Issue is vacated and/or void. This is particularly true since the 7/7/21 Order applies a pre-note of issue standard with respect to the issue concerning the Hull subpoena and/or orders post-note discovery without referencing any post-note of issue standard. Although we are not seeking to reconsider the portion of the order compelling discovery, we are concerned about what this may mean to the interpretation of other aspects of the order. 5 5 of 8 FILED: KINGS COUNTY CLERK 08/05/2021 04:36 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021 26. Since the filing of the note of issue has certain procedural implications, including issues relating to Defendant’s Demand to File a Note of Issue, we would like to clarify that Atlantic’s 6/11/21 Note of Issue remains intact, and that no further note of issue needs to be filed. 27. To the extent this Court appears to have overlooked the fact that Atlantic had already filed a note of issue and that there was not ultimately any motion filed seeking to strike that note of issue, we seek leave to reargue the 7/7/21 Order, and, upon reargument have this Court correct the 7/7/21 Order to clarify that, since the note of issue remains filed and has not been stricken, Atlantic has no further obligation to file a note of issue. As discussed above, it is clear that Atlantic had, in fact, filed a note of issue (see Note of Issue, Exhibit “S” to Exhibit 2; NYSCEF Docket Entry No. 223). Alternatively, if the Court intended to strike the note of issue, it is respectfully requested that, upon reargument, the Court also strike Defendant’s Demand to File Note of Issue so that Atlantic does not get ensnared in a procedural trap as a result of the same. 28. Further, renewal is appropriate because, at the time the Order to Show Cause was briefed and the Court issued the 7/7/21 Order, Defendant’s time to move to vacate the 6/11/21 Note of Issue had not technically run, since Defendant still could have filed its motion later that day, and there remained a risk that Atlantic’s 6/11/21 Note of Issue could still be vacated (see 22 NYCRR 202.21(e); Note of Issue, Exhibit “S” to Exhibit 2). Since it is now clear that Defendant has not moved to vacate the 6/11/21 Note of Issue, this is a new fact which should be considered by the Court and, in light of this new fact and since the note of issue has not been vacated, there is no need for an extension of Atlantic’s time to file the same. 29. Clarification of this issue will help avoid future confusion regarding the status of this case, Atlantic’s obligation to file a further note of issue and whether and/or when deadlines triggered by the filing of a note of issue began to run. 6 6 of 8 FILED: KINGS COUNTY CLERK 08/05/2021 04:36 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021 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 August 5, 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 7 7 of 8 FILED: KINGS COUNTY CLERK 08/05/2021 04:36 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 308 RECEIVED NYSCEF: 08/05/2021 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 1,810 which is in compliance with NYCRR 202.8-b. Dated: White Plains, New York August 5, 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 8 8 of 8