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December 15, 2021
VIA ECF Filing
The Honorable Nancy M. Bannon
Supreme Court of the State of New York
County of New York
60 Centre Street
New York, New York 10007
RE: E.E. Cruz & Company, Inc. v. Starr Surplus Lines
Insurance Co., Index No.: 652321-2020
Dear Judge Bannon,
As Your Honor is aware, we represent Plaintiff, EE Cruz & Company, Inc. (“Cruz”),
in the above-referenced matter. Please allow this letter, submitted jointly with counsel for
defendant, Starr Surplus Lines Ins. Co. (“Starr”), to provide an update on the status of
discovery in advance of the December 16, 2021 Compliance Conference.
As set forth at length in our November 10, 2021 request for an extension of the
deadlines set forth in the current Case Management Order, this matter involves a complex
builders’ risk insurance coverage dispute arising out of a loss sustained in connection
with the renovation and rehabilitation of three bridges in Westchester, New York. During
construction, one of the drilled shafts on the project became infiltrated with water and
soot, rendering it unsuitable for use. Cruz was required to re-design and build the drilled
shaft, incurring substantial costs for the direct repair of the drilled shafts and delay in
construction. When Starr failed to compensate Cruz for its losses pursuant to the
builders’ risk policy issued by it, this litigation ensued. In its Complaint, Cruz seeks
damages for breach of the insurance policy. In addition to the standard breach of contract
claims, Cruz has stated cognizable claims for bad faith (breach of the implied covenant
of good faith and fair dealing) and violations of General Business Law §349. These
claims, in part, arise out of Starr’s issuance of an insurance policy than the policy that
was negotiated by the parties. Accordingly, fact discovery in this case is multi-faceted
and will encompass: (1) Cruz’s direct damages; (2) Cruz’s impact damages; and (3) the
negotiation and underwriting of the subject Policy.
Despite the parties’ diligent efforts, discovery could not be completed in
compliance with the Court’s Order. Specifically, since our November 10, 2021 letter1,
the parties have met regularly to discuss the status of discovery, and substantial progress
has been made. Cruz provided a Supplemental Document production on November 22,
2021, and it served documents it obtained from its two third-party vendors, McGriff,
Seibels & Williams, Inc. (“McGriff”) and Turner Surety and Insurance Brokerage (“TSIB”)
1 A copy of the parties’ joint November 10, 2021 correspondence is attached hereto.
233 Mount Airy Road, Basking Ridge, NJ 07920 • 973.446.7300
www.sdvlaw.com
Connecticut • Florida • California • New Jersey
on November 15, 2021, and December 3, 2021, respectively. Cruz subsequently served
a second Supplemental Production on December 13, 2021.
With the exception of one outstanding subpoena (discussed below), and the
exchange of privilege logs, all requested written discovery has been exchanged. The
parties anticipate exchanging privilege logs on January 7, 2021, and thereafter, will
evaluate the sufficiency of the productions and the validity of the privilege claimed.
Unfortunately, despite these diligent efforts, challenges with obtaining documents,
and the sheer volume of discovery of this matter made it impossible for the parties to have
completed the fourteen (14) anticipated depositions in compliance with this Court’s Order.
First, counsel for both parties previously agreed to help facilitate third party
production to avoid the time and expense of serving subpoenas. As part of this
cooperative agreement, counsel for Starr requested copies of the relevant files of McGriff,
Cruz’s insurance broker. Counsel for Cruz complied with this request, obtained
documentation from McGriff, and forwarded the same to counsel for Starr. Following
review, Starr advised that it had reason to believe McGriff had not produced a complete
file. Upon receiving this information, counsel for Cruz contacted McGriff, and was
informed for the first time that McGriff was unable to engage its e-discovery team, which
would enable it to ensure that it produces a complete file, without a subpoena. A
subpoena has since been served on McGriff, but its complete file has not been received
as of the date. Without a complete copy of McGriff’s file, depositions of key underwriting
witnesses have been unable to go forward.
Second, after Cruz produced its Supplemental Production, counsel for Cruz
discovered that Cruz failed to provide it with a substantial number of documents
responsive to Starr’s request. Counsel for Cruz immediately notified counsel for Starr,
and undertook corrective action to obtain the missing documents and expedited internal
review of the same. Counsel also engaged a third-party eDiscovery vendor at significant
cost in an effort to complete production as quickly as possible. This supplemental
production was finalized and transmitted to counsel for Starr on Monday, December 13,
2021. In light of this missing production, counsel could not depose several of Cruz’s
witnesses.
Third, Starr complied with its discovery obligations, including producing files of third
parties on or before November 5, 2021. Starr’s total production is approximately 25,000
pages. This will require a significant commitment of time to review, and in part
necessitated the delay of proposed depositions. To date, a privilege log has not been
produced to correspond with this voluminous production, without which, counsel for Cruz
is unable assess the sufficiency of the responses and appropriateness of any redactions,
and to determine whether any additional discovery is required.
Finally, even if all documents were served on October 18, as set forth in the Case
Management Order, the parties would have only been allotted six weeks to review these
written discovery responses (encompassing approximately 42,000 pages, combined) and
complete fourteen (14) depositions. Due to the complexity of the issues involved in this
case, this would have been challenging, if not impossible, in the best of circumstances.
For the forgoing reasons, the parties jointly request that the Proposed Joint Case
Management Order be entered.
Respectfully submitted,
Stacy M. Manobianca
SManobianca@sdvlaw.com
(203) 287-2100
cc: Charles J. Rocco, Esq.
Ashley C. Vicere, Esq.
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December 15, 2021 VIA ECF Filing The Honorable Nancy M. Bannon Supreme Court of the State of New York County of New York 60 Centre Street New York, New York 10007 RE: E.E. Cruz & Company, Inc. v. Starr Surplus Lines Insurance Co., Index No.: 652321-2020 Dear Judge Bannon, As Your Honor is aware, we represent Plaintiff, EE Cruz & Company, Inc. (“Cruz”), in the above-referenced matter. Please allow this letter, submitted jointly with counsel for defendant, Starr Surplus Lines Ins. Co. (“Starr”), to provide an update on the status of discovery in advance of the December 16, 2021 Compliance Conference. As set forth at length in our November 10, 2021 request for an extension of the deadlines set forth in the current Case Management Order, this matter involves a complex builders’ risk insurance coverage dispute arising out of a loss sustained in connection with the renovation and rehabilitation of three bridges in Westchester, New York. During construction, one of the drilled shafts on the project became infiltrated with water and soot, rendering it unsuitable for use. Cruz was required to re-design and build the drilled shaft, incurring substantial costs for the direct repair of the drilled shafts and delay in construction. When Starr failed to compensate Cruz for its losses pursuant to the builders’ risk policy issued by it, this litigation ensued. In its Complaint, Cruz seeks damages for breach of the insurance policy. In addition to the standard breach of contract claims, Cruz has stated cognizable claims for bad faith (breach of the implied covenant of good faith and fair dealing) and violations of General Business Law §349. These claims, in part, arise out of Starr’s issuance of an insurance policy than the policy that was negotiated by the parties. Accordingly, fact discovery in this case is multi-faceted and will encompass: (1) Cruz’s direct damages; (2) Cruz’s impact damages; and (3) the negotiation and underwriting of the subject Policy. Despite the parties’ diligent efforts, discovery could not be completed in compliance with the Court’s Order. Specifically, since our November 10, 2021 letter1, the parties have met regularly to discuss the status of discovery, and substantial progress has been made. Cruz provided a Supplemental Document production on November 22, 2021, and it served documents it obtained from its two third-party vendors, McGriff, Seibels & Williams, Inc. (“McGriff”) and Turner Surety and Insurance Brokerage (“TSIB”) 1 A copy of the parties’ joint November 10, 2021 correspondence is attached hereto. 233 Mount Airy Road, Basking Ridge, NJ 07920 • 973.446.7300 www.sdvlaw.com Connecticut • Florida • California • New Jersey on November 15, 2021, and December 3, 2021, respectively. Cruz subsequently served a second Supplemental Production on December 13, 2021. With the exception of one outstanding subpoena (discussed below), and the exchange of privilege logs, all requested written discovery has been exchanged. The parties anticipate exchanging privilege logs on January 7, 2021, and thereafter, will evaluate the sufficiency of the productions and the validity of the privilege claimed. Unfortunately, despite these diligent efforts, challenges with obtaining documents, and the sheer volume of discovery of this matter made it impossible for the parties to have completed the fourteen (14) anticipated depositions in compliance with this Court’s Order. First, counsel for both parties previously agreed to help facilitate third party production to avoid the time and expense of serving subpoenas. As part of this cooperative agreement, counsel for Starr requested copies of the relevant files of McGriff, Cruz’s insurance broker. Counsel for Cruz complied with this request, obtained documentation from McGriff, and forwarded the same to counsel for Starr. Following review, Starr advised that it had reason to believe McGriff had not produced a complete file. Upon receiving this information, counsel for Cruz contacted McGriff, and was informed for the first time that McGriff was unable to engage its e-discovery team, which would enable it to ensure that it produces a complete file, without a subpoena. A subpoena has since been served on McGriff, but its complete file has not been received as of the date. Without a complete copy of McGriff’s file, depositions of key underwriting witnesses have been unable to go forward. Second, after Cruz produced its Supplemental Production, counsel for Cruz discovered that Cruz failed to provide it with a substantial number of documents responsive to Starr’s request. Counsel for Cruz immediately notified counsel for Starr, and undertook corrective action to obtain the missing documents and expedited internal review of the same. Counsel also engaged a third-party eDiscovery vendor at significant cost in an effort to complete production as quickly as possible. This supplemental production was finalized and transmitted to counsel for Starr on Monday, December 13, 2021. In light of this missing production, counsel could not depose several of Cruz’s witnesses. Third, Starr complied with its discovery obligations, including producing files of third parties on or before November 5, 2021. Starr’s total production is approximately 25,000 pages. This will require a significant commitment of time to review, and in part necessitated the delay of proposed depositions. To date, a privilege log has not been produced to correspond with this voluminous production, without which, counsel for Cruz is unable assess the sufficiency of the responses and appropriateness of any redactions, and to determine whether any additional discovery is required. Finally, even if all documents were served on October 18, as set forth in the Case Management Order, the parties would have only been allotted six weeks to review these written discovery responses (encompassing approximately 42,000 pages, combined) and complete fourteen (14) depositions. Due to the complexity of the issues involved in this case, this would have been challenging, if not impossible, in the best of circumstances. For the forgoing reasons, the parties jointly request that the Proposed Joint Case Management Order be entered. Respectfully submitted, Stacy M. Manobianca SManobianca@sdvlaw.com (203) 287-2100 cc: Charles J. Rocco, Esq. Ashley C. Vicere, Esq.