Preview
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
----------___________..---.._____________________Ç
JAYME THODE, Index No. 61561/2021
Plaintiff, RESPONSE TO
- against - PRELIMINARY
CONFERENCE
TIMOTHY HILL CHILDREN'S RANCH, INC., ORDER
TIMOTHY HILL FARM, LLC, APPLE DAY CAMP, INC.,
TIMOTHY HILL CHRISTIAN CAMP, INC., THE
TIMOTHY FOUNDATION, INC., AND JERRELL HILL,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY,
Defendants.
______....--...---------------------------------Ç
Defendants, by their attorneys, DEVITT SPELLMAN BARRETT, LLP, as and for their
response to the Preliminary Conference Order filed on September 9, 2022, hereby sets forth as
follows:
1, Insurance: There is no insurance coverage at this time. However, attached is a copy
of a purported disclaimer form the Philadelphia Insurance Company.
2. Witnesses: Other than what has been disclosed by plaintiff, defendants are not aware
of any witnesses to the alleged incident herein.
3. Statements: Other than what may be contained within the police accident incident
report provided by plaintiff, defendants are not in possession of any adverse party
statements,
4, Photographs: Defendants are not in possession of any such surveillance films,
videotapes or photographs,
5. Accident Reports: Other than the police incident report provided by plaintiff,
defendants are not in possession of any such accident reports.
6. Expert Witnesses: Defendants have not yet retained the services of an expert
witness to testify at the trial of this matter, When they have done so, this response
will be supplemented in accordance with any scheduling order of this Court and
CPLR 3101(d).
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
Defendants hereby reserve the right to amend and/or supplement this response up to and
including the time of trial.
Dated: Smithtown, New York
September 26, 2022
Yours, etc.,
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendants
50 Route 111, Suite 314
Smithtown, New York 11787
(631)724-8833
Our File No. TH9490JD (DSP/1yh)
By: /s/ David S. Pallai
DAVID S. PALLAI
TO: RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP
Attorneys for Plaintiff
29th
551 Fifth Avenue, FlOOr
New York, New York 10176
(212) 684-1880
2
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC., NO. 27 RECEIVED NYSCEF: 11/16/2022
MARSHALL CONWAYBRADLEYGOLWB & WEISSMAN
A PROFESSIONAL CORPORATION
45 BROADWAY - SUITE 740
New Yonx, NEw Yonx 10006
TELEPHONE: (212)619-4444
TELECOPIER: (212)962-2647
e-mail:mew@mewpe.com
JEFFREYA. MARSHALL DAN1ELA. ALTER STACEYH. SNYDER NEW JERSl|y OFFICE
ROBARTJ. CONWAY** L1ZAA. CHAPlIAN ANDREWS.TAYLOR 250DPlazz5
CHRISTOPHER T. BRADLEY MARIA T. ETERLICH STEVENM. ZIOLKOWSKI * Harborside
FinancialCenter
MICHAELS.GOLLUS A oREGoRY McGUIRE JerseyCity, New Jersey07311
AMY S,WEISSMAN* 521-3170
Telephone:(201)
LAURENTURKEL Telecopler (201) 521-3180
OF COUNSEL
ANTHONYD. GRANDE *
ANNA E.CABBAY
SAMUELF.PANICCIA
DYLAN J.MURPHY*
ARTUROBOUTIN
EVANECHENTHAL
*
JAMESW. McCARTNEY*
'ADMitT D [N CONNECT[CUT
^ADMITTEDIN WASHINGION, D.C. ..
*ADMITTEDIN NEWJERSEY
"ADMrITED IN PUERTORICO
** RETlRED2020
October 13, 2021
Via E-Mail and Certified Mail: thill@timothyhill.org
Timothy Hill Children's Ranch, Inc.
298 Middle Road
Riverhead, New York 11901-2034
Attention: Thaddaeus Hill
Executive Director
Policyholder: Timothy Hill Children's Ranch, Inc.
Policy Type: Flexi Plus Five
Policy No.: PHSD1635425
Pólicy Period: June 20, 2021 to June 20, 2022
Claimant: Jayme Thode
Phil. File No.: PHFF21101466941
Our File No.: 36-11107
Dear IVÃŒr,Hill,
We are writing to you as the Parent Organization designated to receive any and allnotices from the
Underwriterl
concerning this insmance. We write this coverage letter on behalf of Philadelphia
1
Bold faced terms or terms with an initialcapital unless
letter, otherWise defined, shall have the same
respectivemeanings ascribed to them in the Policy.
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
Indemnity Insurance Company ("Philadelphia")2. This disclaimer of coverage letteris based upon
the complaint ("Complaint") entitled Jayme Thode v. Timothy Hill Children's Ranch, Inc., et.at,
Index No. 615613/2021, filed in Suffolk County Supreme Court ("Action"). If Plaintiff, her parents
or legal counsel sent any written communication to Timothy Hill Children's Ranch, Inc. or any
other co-defendant prior to filing the Complaint, please provide us with a copy of any such
communication,
As discussed more fully in this letter, there is no coverage for the Action based upon the Abuse
Exclusion With Workplace Harassment Carveback endorsement, Exclusion I (bodily injury), the
Professional Services Exclusion (Supervision Carve-Out) endorsement, the Related Party
Exclusion, and for the other reasons set forth herein. This letter only addresses Philadelphia's
coverage position under Flexi Plus Five Policy No. PHSD1635425. A separate letter will be issued
addressing general liability policies under claim no. PINP21091466289.
The Acjtion.
Jayme Thode ("Plaintiff") filed her Complaint under New York's Child Victims Act against
Timothy Hill Children's Ranch, Inc. ("Ranch"), Timothy Hill Farm, LLC ("Farm"), Apple Day
Camp, Inc. ("Camp"), Timothy Hill Christian Camp, Inc. ("Christian Camp"), The Timothy Hill
Jerrell3
Foundation, Inc. ("Foundation") and Hill (collectively, "defendants").
The Complaint alleges: (i) in 1976 Fern Hill (now deceased) and Jerrell Hill founded the Ranch to
help restore abused and neglected boys; (ii)on May 25, 1992 when Plaintiff was age 14 and went to
the Ranch to visit friends, she was sexually abused, sexually assaulted, sexually battered, sexually
molested and raped on thepremises by a twenty year old resident of the Ranch named Lawrence G.
defendants'
Brathwaite III ("Brathwaite"); (iii) negligent and inadequate supervision created a
culture of lawlessness, resulting in Plaintiff being sexually assaulted and raped; (iv) defendants
hired and employed certain individuals to supervise, oversee, instruct, train, teach and/or monitor
residents of the Ranch, including Brathwaite; (v) defendants failed to properly investigate risks of
child molestation, train itsemployees to identify molestation/abuse by residents and protect visitors;
(vi) defendants knew or should have known of the potential for physical and sexual abuse of visitors
by residents; (vii) defendants failed to report reasonable suspicion of abuse by Brathwaite of
children in their care; (viii)defendants had actual notice of the unlawful activities taking place on
their premises by virtue of prior incidents; (ix) defendants failed to protect Plaintiff visitor from a
defendants'
sexual deviant; and (x) acts were willful, wanton, reckless and done with malice.
action4
The Complaint contains seven causes of against all defendants: First Cause of Action
(Negligent Supervision and/or Oversight); Second Cause of Action (Negligence/Gross Negligence);
Third Cause of Action (Sexual Battery); Fourth Cause of Action (Intentional Infliction of Emotional
Distress); Sixth Cause of Action (Negligent Infliction of Emotional Distress); Seventh Cause of
Action (Breach of Statutory Duty t.0Report Abuse Under Soc. Serv. Law §§ 413 and 420); Eighth
Cause of Action (Violation of N.Y. Pen. Law §§ 263, 263.05, 263.10, 2.63.15, 263.16).
2
Although Marshall Conway Bradley Gollub & Weissman, P.C. has been authorized to issuethisletteron
behalf of Philadelphia,we have notbeen authorized to acceptserviceof process forPhiladelphia.
8 "Jerrel" "Jaume"
Also spelled and Plaintiff nanie
s first is alsospelled in thepleadings.
4 Action"
The Complaint does not containa "Fifth Cause of caption.
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
Page
Plaintiff asserts pain and suffering, physical injury, psychological injury and emotional injury.
Plaintiff seeks unspecified compensatory and punitive damages.
The Poliev
PHSD16354255
Philadelphia issued claims-made and reported Flexi Plus Five Policy No. to
Timothy Hill Children's Ranch, Inc. for the Policy Period of June 20, 2021 to June 20, 2022
("Policy").
The Policy contains: (i) Part 1, Not-for-Profit Organization Directors & Officers Liability
Insurance ("D&O Part"); (ii) Part 2, Employment Practices Liability Insurance ( ˆPL Part"); (iii)
and, Part 3, Fiduciary Liability Insurance ("Fiduciary Part"). Both the D&O Part and the EPL Part
each have a $5,000,000 limit of liability each Policy Period, and the Fiduciary Part has
a - $1,000,000 limit .of liability each Policy Period, and it contains an All Parts
Aggregate limit of liability of $5,000,000 each Policy Period, subject to a $10,000 retention
each Claim for D&O Liability Claims for indemnifiable loss, a $10,000 retention each Claim
for EPL Liability Claims for indemnifiable loss, a $25,000 retention each Claim for EPL Part
Claims pursuant to the Employment Practices Liability Third Party Sub-Retention
Endorsement, and a $1,000 retention each Claim for the Fiduciary Part. The Prior and Pending
Date at Item 5 of the Declarations page for each of the foregoing coverage Parts is June 20,
2012,
The Policy, as modified by the New York Amendatory-Retention and Coinsurance
endorsement, has: .(i) a $100 Each Claim per Director or Officer retention for non
indemnifiable loss and a $1,000 retention in the aggregate for allDirectors and Officers for non
indemnifiable loss; and (ii) a $10,000 retention for each claim against an Organization; and
Each Director and Officer is liable to pay 0.10% of net (less retention amount) loss for the first
of $1,000,000 of coverage.
The Policy, as modified by a Shared Limits Endorsement, states, in pertinent part, as follows:
.....
It is agreed the combined/shared Limit of Liability available for any Claim
under Parts(s) 1 and any Clahn under Part(s) 2, 3 shall be $5,000,000.
Notwithstanding the foregoing, the Limit of Liability available for any Claim
under a coverage Part shall also be subject to such Parts Limit of Liability as
stated in Item 3 of the Declarations.
The Policy contains a Bell Endorsement, a Pro-Pak Elite Enhancement PI-NPD-82NY (12/06)
endorsement which contains a Part 9 Additional Coverages and a New York-Changes PI-NPD-NY
(12/10) endorsement. The Pro-Pak endorsement and New York Changes endorsements change
Insurance, For thisreason these coverage Partsare not discussed inthis letter.
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
some of the Policy's terms, exclusions, conditions and definitions, as discussed below. Since the
Bell Endorsement and Part 9 of the Pro-Pak endorsement have no application to the Action, the Bell
Endorsement and Part 9 are not discussed further in this letter No other professional liability policy
issued by Philadelphia has been addressed in this letter because the Action was first made and
reported during the Policy Period of the Policy.
Philadelphia's obligations as to defense and indemnity are limited to the terms, conditions,
exclusions and endorsements of the Policy. Please refer to the full Policy for allprovisions that have
bearing on these obligations.
As is set forth more fully below, there is no coverage for the Action under the Policy. As such,
Philadelphia will neither defend nor reimburse Defense Costs or pay any indemnity in the Action
New York-Changes endorsement PI-NPD-NY (12/10) states the following with regard to the first
paragraph at page 1 ofthe Policy:
NOTICE: EXCEPT TO SUCH EXTENT AS MAY OTHERWISE BE
PROVIDED HEREIN, THIS POLICY IS ·WRITTEN ON A CLAIMS-MADE
BASIS FOR ALL LIABILITY COVERAGES AND COVERS ONLY THOSE
CLAIMS FIRST MADE DURING THE POLICY PERIOD AND REPORTED IN
WRITING DURING THE POLICY PERIOD, ANY SUBSEQUENT RENEWAL,
OR EXTENDED REPORTING PERIOD, IN ACCORDANCE WITH SECTION
IV. OF THE POLICY, BUT NOT LATER THAN 60 DAYS AFTER THE END
OF THE POLICY PERIOD, OF ANY SUBSEQUENT POLICY PERIOD
FOLLOWING POLICY RENEWAL, OR OF ANY EXTENDED REPORTING
PERIOD,
The Policy preamble states:
.....,
In consideration of the premium paid and in reliance upon all statements made and
information furnished to the Underwriter, including all statements made in the
Application, the Underwriter agrees to provide coverage as shown in the Declarations and
described as follows:
Part 1
Not-for-Profit Organization Directors & Officers Liability Insurance
(To he read in conjunction with the Common Policy
Definitions, Exclusions, and Conditions Sections, Parts 6, 7, 8 below)
L INSURING AGREEMENTS
4
This lettershallalsoserve as a replyto theDevittlaw firsts 10/18/21 email to Ms. Sharon S. Eggert of
Philadelphia. Philadelphiadoes not consent toRanch's retentionofthe Devitt law finn orany Insured incurringany
Defense Cost under the Policyas the Action isnot covered forthe reasons statedinthisletter.
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
A. The Underwriter will pay on behalf of the Individual Insured, Loss from Claims
made against Individual Insureds during the Policy Period (or, if applicable, during
the Extension Period), and reported to the Underwriter pursuant to the terms of this
Policy, for D&O Wrongful Acts, except to the extent the Organization has
indemnified the Individual Insureds for such Loss.
B. The Underwriter will pay on behalf of the Organization, Loss from Claims made
against Individual Insureds during the Policy Period (or, if applicable, during the
Extension Period), and reported to the Underwriter pursuant to the terrns of this
Policy, for D&O Wrongful Acts, if the Organization has indenmified such
Individual Insureds for such Loss.
C. The Underwriter will pay on behalf of the Organization, Loss from Claims made
against the Organization during the Policy Period (or, if applicable, during the
Extension Period), and reported to the Underwriter pursuant to the terms of this
Policy, for a D&O Wrongful Act.
II. DEFINITIONS
A. D&O Wrongful Act means any actual or alleged:
1. Act, error, omission, misstatement, misleading statement, neglect, breach of
duty or Personal & Advertising Injury committed or attempted by an
Individual Insured in his/her capacity as an Individual Insured; or by the
Organization; or
2. Act, error, omission, misstatement, misleading statement, neglect, breach of
duty of Personal & Advertising Injury committed or attempted by an
Individual Insured while serving as a director, officer, governor or trustee of
any Outside Entity, if such service is at the written request or direction of
the Organization,
However, D&O Wrongful Act does not include an Employment Practices Act,
Fiduciary Liability Act, or Internet Liability Act.
......
Part 2
Employment Practices Liability Insurance
(To be read in conjunction with the Common Policy Definitions,
Exclusions, and Conditions Sections, Parts 6, 7, 8 below)
I. INSURING AGREEMENTS
A. The Underwriter will pay on behalf of the Insured, Loss from Claims made
against the Insured during the Policy Period (or, if applicable, during the Extension
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
Page
Period), and reported to the Underwriter pursuant to the terms of this Policy, for an
Employment Practices Act.
II. DEFINITIONS
Employment Practice Act means any actual or alleged:
1. Wrongful dismissal, discharge or termination of employment;
2. Breach of a written or oral employment contract or implied
employment contract;
3. Employment related misrepresentation;
4. Wrongful failure to promote;
5. Violation of employment discrimination laws (including
harassment);
6. Wrongful deprivation of a career opportunity;
7. Employment related wrongful discipline;
8. Negligent employee evaluation;
9. Employment related invasion of privacy;
10. Employment related defamation (including libel and slander);
11. Sexual or workplace harassment of any kind;
12. Constructive discharge of employment;
13. Employment related retaliation;
14. Employment related humiliation;
15. Wrongful demotion;
16. Negligent reassignment;
17. Violation of any federal, state or local civil rights laws;
and committed or attempted by an Individual Insured in his/her capacity
as an Individual Insured or by the Organization.
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
Page
Solely with respect to any Claim brought by or on behalf of any Third
Party, Employment Practices Act means any.actual or alleged
wrongful failure to employ, discrimination, sexual harassment or violation
of such Third Party's civil rights in relation to such wrongful failure to
employ, discrimination or sexual harassment, whether direct,
indirect, or unintentional, committed by an Individual Insured in
his/her capacity as an Individual Insured or by the Organization.
B. Third Party means any natural person who is an active or current customer,
supplier, vendor, applicant, business invitee or other client of the Organization.
Part 6
Common Policy Definitions
.......
(The Pro-Pak Elite Enhancement PI-NPD-82 NY (10/12) endorsement and the New York-Changes
PI-NPD-NY (12/10) endorsement modify insurance provided under some of the following Part 6
Common Policy Definitions as indicated below.)
A. Application means the Application attached to and forming a part of this Policy,
including any materials submitted in connection therewith, and on filewith the
insurer.
New York - Changes PI-NPD-NY endorsement at Section Item
(see, (12/10) H, A.)
B. Claim means for the purposes of Parts 1, 2, 3 and 5:
1. Any written demand for monetary or non-monetary relief;or
2. Any judicial, civil, administrative, regulatory, or arbitration proceeding (including
any appeal therefrom), or
3. Any written request to toll or waive the statute of limitations applicable to any actual
or potential suit of cause of action against an Insured.
However, Claim shall not include a labor or grievance proceeding pursuant to a
Collective bargaining agreement.
Claim, will also mean any criminal proceeding commenced by return of
an indictment, to the extent permitted by applicable corporate statute.
With respect to Claims brought under Part 2 of this policy only, Item B., Claim,
will also mean proceedings before the Equal Employment Opportunity
Commission or any similar governmental agency.
(see, Pro-Pak Elite Enhancement PI-NPD-82 NY (12/06) endorsement at Par. 2.†.
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
Page 8
and 2.B, Amendment of Definitions)
Claim is also amended, in relevant part, to include:
Any written demand or binding adjudication of liabilityfor non-pecuniary
reliefunder Item 1. or 2. of the definition of Claim.
A Claim will be deemed to have been made when such written notice is
firstreceived by the Insured,
Itis a conditioD precedent to coverage under this Policy that allClaims be
reported in compliance with the Notice/Claim Reporting Provisions of this Policy.
(see, New York-Changes endorsement PI-NPD-NY (12/10) at Section II,Par.
B.)
C. Damages means -
Solely with respect to Parts 1, 2, ...., Item C. Damage, is replaced with the
following:
C, Damage means a monetary judgment, award or settlement including punitive or
exemplary damages (including pre-judgment interest thereon) to the extent such
punitive and exemplary damages are insurable under applicable law or any
jurisdiction which has a substantial relationship to the Insured or to the Claim
seeking such damage and which is most favorable to the insurability of such damage
and then only on an amount not greater than the amount of compensatory damages
awarded in such Claim, provided however, that no such coverage is available for
proceedings within the state of New York.
(see, Pro-Pak Elite Enhancement endorsement PI-NPD-82NY (12/06),
Damage, at Item 2.C., Part 6, Amendment of Definitions)
D. Defense Costs means:
1. Any reasonable and necessary legal fees and expenses incurred in the defense
of a Claim, whether by the Insured with the Onderwriter's consent or
directly by the Underwriter, in the investigation, adjustment, defense, and
appeal of a Claim; except that Defense Costs shall not include:
a. Any amounts incurred in the defense of any Claim for which any
other insurer has a duty to defend, regardless of whether or not such
other insurer undertakes such duty;
......
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NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
D. Defense Cost will also mean any pre-judgment interest on the portion
of any judgment for which the Underwriter is liable under this
policy, until the Underwriter has tendered or deposited in court or
otherwise such judgment amount for which the Underwriter is
liable.
(see, as to Item D., Pro-Pak Elite Enhancement endorsement PI-
NPD-82NY (12/06) at Item 2, Part 6, Amendment of Definitions
Par. D., Defense Cost.)
......
F. Individual Insured means:
1. Any individual who has been, now is,or shall become a director, officer,
governor, trustee, equivalent executive, employee (whether salaried or
not), volunteer, leased or temporary employee, or committee
member of the Organization or, solely with respect to Part 3 (Fiduciary
Liability Insurance), of any Benefit Plan;
......
With respect to Claims brought under Part 2 of this policy only, Item
F., Individual Insured, will also mean any independent contractor
working on behalf of the Organization in the capacity of a director
or officer; solely if the Organization has agreed in writing to
indemnify the independent contractor prior to the occurrence of the
Employment Practices Act which is thebasis of the Claim.
......
as to Item F., Pro-Pak Elite Enhancement endorsement PI-NPD-
(see,
82NY (12/06) at Item 2, Part 6, Amendment of Definitions, Par. E)
G. Insured means the Organization and Individual Insured.
.....
I. Loss means:
1. Damages;
2. Defense Costs;
but Loss does not include:
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022
1. Criminal or civil fines or penalties imposed by law, except that solely
with respect to Part 3 (Fiduciary Liability Insurance) Loss includes
fines or penalties imposed under Section 502(i) and (1) of ERISA; or
2. Taxes; or
3. Matters deemed uninsurable under the law to which this Policy shall
be construed; or
4. Any amounts other than Defense Costs, which an Insured is
obligated to pay as a result of a Claim seeking relief or redress in any
form other than monetary damages; or
5. Any costs other than Defense Costs associated with any
accommodation required pursuant to the Americans With Disabilities
Act, the Civil Rights Act of 1964, rules or regulations promulgated
thereunder, amendments thereto, or similar provisions of any federal,
state,or local or common law.
J. Organization means:
1. The Parent Organization,
2. Any Subsidiary, and
3. .....
......
M. Subsidiary means:
1. Any not-for-profit entity for which, on or before the inception of the
Policy Period, the Parent Organi|ation has the right to elect or select a
majority of the directors or trustees, provided such entity is identified as a
Subsidiary in the Application;
2. Any not-for-profit entity for which, after the inception of the Policy
Period, the Parent Organization has the right to elect or select a
majority of the directors or trustees, and whose assets total less than 35%
of the total consolidated assets of the Parent Organization as of the
inception date of this Policy Period. The Parent Organization shall
provide the Underwriter with full particulars of the new Subsidiary
before the end of the Policy Period;
3. Any not-for-profit entity for which, after the inception of the Policy
Period, the Parent Organization has the right to elect or select a majority
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Page
___ _____
of the directors or trustees, and whose assets total 35% or more of the total
consolidated assets of the Parent Organization as of the inception date of
this Policy Period; but only upon the condition that before the end of the
Policy Period or within 90 days from having the right to elect or select a
majoiity of the directors or trustees, whichever is lesser, the Parent
Organization shall have provided the Underwriter with full particulars
and agreed to any additional premium and/or amendment of the provisions
of this Policy;
4. Any forprofit entity or the directors,.officers, or trustees of a for profit
entity for which, the Underwriter, upon such terms or additional
premium charged.
Further, coverage as shall be afforded by paragraphs 3. and 4. above, is
conditioned upon the Parent Organization·paying when due any applicable
additional premium required by the Underwriter relating to such new
Subsidiary.
The Pro-Pak Elite Enhancement PI-NPD-82NY (12/06) endorsement states:
H. Item M., Subsidiary, will also mean any not-for-profit entity for
Preview
FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------___________..---.._____________________Ç JAYME THODE, Index No. 61561/2021 Plaintiff, RESPONSE TO - against - PRELIMINARY CONFERENCE TIMOTHY HILL CHILDREN'S RANCH, INC., ORDER TIMOTHY HILL FARM, LLC, APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC., AND JERRELL HILL, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, Defendants. ______....--...---------------------------------Ç Defendants, by their attorneys, DEVITT SPELLMAN BARRETT, LLP, as and for their response to the Preliminary Conference Order filed on September 9, 2022, hereby sets forth as follows: 1, Insurance: There is no insurance coverage at this time. However, attached is a copy of a purported disclaimer form the Philadelphia Insurance Company. 2. Witnesses: Other than what has been disclosed by plaintiff, defendants are not aware of any witnesses to the alleged incident herein. 3. Statements: Other than what may be contained within the police accident incident report provided by plaintiff, defendants are not in possession of any adverse party statements, 4, Photographs: Defendants are not in possession of any such surveillance films, videotapes or photographs, 5. Accident Reports: Other than the police incident report provided by plaintiff, defendants are not in possession of any such accident reports. 6. Expert Witnesses: Defendants have not yet retained the services of an expert witness to testify at the trial of this matter, When they have done so, this response will be supplemented in accordance with any scheduling order of this Court and CPLR 3101(d). FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 Defendants hereby reserve the right to amend and/or supplement this response up to and including the time of trial. Dated: Smithtown, New York September 26, 2022 Yours, etc., DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendants 50 Route 111, Suite 314 Smithtown, New York 11787 (631)724-8833 Our File No. TH9490JD (DSP/1yh) By: /s/ David S. Pallai DAVID S. PALLAI TO: RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP Attorneys for Plaintiff 29th 551 Fifth Avenue, FlOOr New York, New York 10176 (212) 684-1880 2 FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC., NO. 27 RECEIVED NYSCEF: 11/16/2022 MARSHALL CONWAYBRADLEYGOLWB & WEISSMAN A PROFESSIONAL CORPORATION 45 BROADWAY - SUITE 740 New Yonx, NEw Yonx 10006 TELEPHONE: (212)619-4444 TELECOPIER: (212)962-2647 e-mail:mew@mewpe.com JEFFREYA. MARSHALL DAN1ELA. ALTER STACEYH. SNYDER NEW JERSl|y OFFICE ROBARTJ. CONWAY** L1ZAA. CHAPlIAN ANDREWS.TAYLOR 250DPlazz5 CHRISTOPHER T. BRADLEY MARIA T. ETERLICH STEVENM. ZIOLKOWSKI * Harborside FinancialCenter MICHAELS.GOLLUS A oREGoRY McGUIRE JerseyCity, New Jersey07311 AMY S,WEISSMAN* 521-3170 Telephone:(201) LAURENTURKEL Telecopler (201) 521-3180 OF COUNSEL ANTHONYD. GRANDE * ANNA E.CABBAY SAMUELF.PANICCIA DYLAN J.MURPHY* ARTUROBOUTIN EVANECHENTHAL * JAMESW. McCARTNEY* 'ADMitT D [N CONNECT[CUT ^ADMITTEDIN WASHINGION, D.C. .. *ADMITTEDIN NEWJERSEY "ADMrITED IN PUERTORICO ** RETlRED2020 October 13, 2021 Via E-Mail and Certified Mail: thill@timothyhill.org Timothy Hill Children's Ranch, Inc. 298 Middle Road Riverhead, New York 11901-2034 Attention: Thaddaeus Hill Executive Director Policyholder: Timothy Hill Children's Ranch, Inc. Policy Type: Flexi Plus Five Policy No.: PHSD1635425 Pólicy Period: June 20, 2021 to June 20, 2022 Claimant: Jayme Thode Phil. File No.: PHFF21101466941 Our File No.: 36-11107 Dear IVÌr,Hill, We are writing to you as the Parent Organization designated to receive any and allnotices from the Underwriterl concerning this insmance. We write this coverage letter on behalf of Philadelphia 1 Bold faced terms or terms with an initialcapital unless letter, otherWise defined, shall have the same respectivemeanings ascribed to them in the Policy. FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 Indemnity Insurance Company ("Philadelphia")2. This disclaimer of coverage letteris based upon the complaint ("Complaint") entitled Jayme Thode v. Timothy Hill Children's Ranch, Inc., et.at, Index No. 615613/2021, filed in Suffolk County Supreme Court ("Action"). If Plaintiff, her parents or legal counsel sent any written communication to Timothy Hill Children's Ranch, Inc. or any other co-defendant prior to filing the Complaint, please provide us with a copy of any such communication, As discussed more fully in this letter, there is no coverage for the Action based upon the Abuse Exclusion With Workplace Harassment Carveback endorsement, Exclusion I (bodily injury), the Professional Services Exclusion (Supervision Carve-Out) endorsement, the Related Party Exclusion, and for the other reasons set forth herein. This letter only addresses Philadelphia's coverage position under Flexi Plus Five Policy No. PHSD1635425. A separate letter will be issued addressing general liability policies under claim no. PINP21091466289. The Acjtion. Jayme Thode ("Plaintiff") filed her Complaint under New York's Child Victims Act against Timothy Hill Children's Ranch, Inc. ("Ranch"), Timothy Hill Farm, LLC ("Farm"), Apple Day Camp, Inc. ("Camp"), Timothy Hill Christian Camp, Inc. ("Christian Camp"), The Timothy Hill Jerrell3 Foundation, Inc. ("Foundation") and Hill (collectively, "defendants"). The Complaint alleges: (i) in 1976 Fern Hill (now deceased) and Jerrell Hill founded the Ranch to help restore abused and neglected boys; (ii)on May 25, 1992 when Plaintiff was age 14 and went to the Ranch to visit friends, she was sexually abused, sexually assaulted, sexually battered, sexually molested and raped on thepremises by a twenty year old resident of the Ranch named Lawrence G. defendants' Brathwaite III ("Brathwaite"); (iii) negligent and inadequate supervision created a culture of lawlessness, resulting in Plaintiff being sexually assaulted and raped; (iv) defendants hired and employed certain individuals to supervise, oversee, instruct, train, teach and/or monitor residents of the Ranch, including Brathwaite; (v) defendants failed to properly investigate risks of child molestation, train itsemployees to identify molestation/abuse by residents and protect visitors; (vi) defendants knew or should have known of the potential for physical and sexual abuse of visitors by residents; (vii) defendants failed to report reasonable suspicion of abuse by Brathwaite of children in their care; (viii)defendants had actual notice of the unlawful activities taking place on their premises by virtue of prior incidents; (ix) defendants failed to protect Plaintiff visitor from a defendants' sexual deviant; and (x) acts were willful, wanton, reckless and done with malice. action4 The Complaint contains seven causes of against all defendants: First Cause of Action (Negligent Supervision and/or Oversight); Second Cause of Action (Negligence/Gross Negligence); Third Cause of Action (Sexual Battery); Fourth Cause of Action (Intentional Infliction of Emotional Distress); Sixth Cause of Action (Negligent Infliction of Emotional Distress); Seventh Cause of Action (Breach of Statutory Duty t.0Report Abuse Under Soc. Serv. Law §§ 413 and 420); Eighth Cause of Action (Violation of N.Y. Pen. Law §§ 263, 263.05, 263.10, 2.63.15, 263.16). 2 Although Marshall Conway Bradley Gollub & Weissman, P.C. has been authorized to issuethisletteron behalf of Philadelphia,we have notbeen authorized to acceptserviceof process forPhiladelphia. 8 "Jerrel" "Jaume" Also spelled and Plaintiff nanie s first is alsospelled in thepleadings. 4 Action" The Complaint does not containa "Fifth Cause of caption. FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 Page Plaintiff asserts pain and suffering, physical injury, psychological injury and emotional injury. Plaintiff seeks unspecified compensatory and punitive damages. The Poliev PHSD16354255 Philadelphia issued claims-made and reported Flexi Plus Five Policy No. to Timothy Hill Children's Ranch, Inc. for the Policy Period of June 20, 2021 to June 20, 2022 ("Policy"). The Policy contains: (i) Part 1, Not-for-Profit Organization Directors & Officers Liability Insurance ("D&O Part"); (ii) Part 2, Employment Practices Liability Insurance ( ˆPL Part"); (iii) and, Part 3, Fiduciary Liability Insurance ("Fiduciary Part"). Both the D&O Part and the EPL Part each have a $5,000,000 limit of liability each Policy Period, and the Fiduciary Part has a - $1,000,000 limit .of liability each Policy Period, and it contains an All Parts Aggregate limit of liability of $5,000,000 each Policy Period, subject to a $10,000 retention each Claim for D&O Liability Claims for indemnifiable loss, a $10,000 retention each Claim for EPL Liability Claims for indemnifiable loss, a $25,000 retention each Claim for EPL Part Claims pursuant to the Employment Practices Liability Third Party Sub-Retention Endorsement, and a $1,000 retention each Claim for the Fiduciary Part. The Prior and Pending Date at Item 5 of the Declarations page for each of the foregoing coverage Parts is June 20, 2012, The Policy, as modified by the New York Amendatory-Retention and Coinsurance endorsement, has: .(i) a $100 Each Claim per Director or Officer retention for non indemnifiable loss and a $1,000 retention in the aggregate for allDirectors and Officers for non indemnifiable loss; and (ii) a $10,000 retention for each claim against an Organization; and Each Director and Officer is liable to pay 0.10% of net (less retention amount) loss for the first of $1,000,000 of coverage. The Policy, as modified by a Shared Limits Endorsement, states, in pertinent part, as follows: ..... It is agreed the combined/shared Limit of Liability available for any Claim under Parts(s) 1 and any Clahn under Part(s) 2, 3 shall be $5,000,000. Notwithstanding the foregoing, the Limit of Liability available for any Claim under a coverage Part shall also be subject to such Parts Limit of Liability as stated in Item 3 of the Declarations. The Policy contains a Bell Endorsement, a Pro-Pak Elite Enhancement PI-NPD-82NY (12/06) endorsement which contains a Part 9 Additional Coverages and a New York-Changes PI-NPD-NY (12/10) endorsement. The Pro-Pak endorsement and New York Changes endorsements change Insurance, For thisreason these coverage Partsare not discussed inthis letter. FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 some of the Policy's terms, exclusions, conditions and definitions, as discussed below. Since the Bell Endorsement and Part 9 of the Pro-Pak endorsement have no application to the Action, the Bell Endorsement and Part 9 are not discussed further in this letter No other professional liability policy issued by Philadelphia has been addressed in this letter because the Action was first made and reported during the Policy Period of the Policy. Philadelphia's obligations as to defense and indemnity are limited to the terms, conditions, exclusions and endorsements of the Policy. Please refer to the full Policy for allprovisions that have bearing on these obligations. As is set forth more fully below, there is no coverage for the Action under the Policy. As such, Philadelphia will neither defend nor reimburse Defense Costs or pay any indemnity in the Action New York-Changes endorsement PI-NPD-NY (12/10) states the following with regard to the first paragraph at page 1 ofthe Policy: NOTICE: EXCEPT TO SUCH EXTENT AS MAY OTHERWISE BE PROVIDED HEREIN, THIS POLICY IS ·WRITTEN ON A CLAIMS-MADE BASIS FOR ALL LIABILITY COVERAGES AND COVERS ONLY THOSE CLAIMS FIRST MADE DURING THE POLICY PERIOD AND REPORTED IN WRITING DURING THE POLICY PERIOD, ANY SUBSEQUENT RENEWAL, OR EXTENDED REPORTING PERIOD, IN ACCORDANCE WITH SECTION IV. OF THE POLICY, BUT NOT LATER THAN 60 DAYS AFTER THE END OF THE POLICY PERIOD, OF ANY SUBSEQUENT POLICY PERIOD FOLLOWING POLICY RENEWAL, OR OF ANY EXTENDED REPORTING PERIOD, The Policy preamble states: ....., In consideration of the premium paid and in reliance upon all statements made and information furnished to the Underwriter, including all statements made in the Application, the Underwriter agrees to provide coverage as shown in the Declarations and described as follows: Part 1 Not-for-Profit Organization Directors & Officers Liability Insurance (To he read in conjunction with the Common Policy Definitions, Exclusions, and Conditions Sections, Parts 6, 7, 8 below) L INSURING AGREEMENTS 4 This lettershallalsoserve as a replyto theDevittlaw firsts 10/18/21 email to Ms. Sharon S. Eggert of Philadelphia. Philadelphiadoes not consent toRanch's retentionofthe Devitt law finn orany Insured incurringany Defense Cost under the Policyas the Action isnot covered forthe reasons statedinthisletter. FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 A. The Underwriter will pay on behalf of the Individual Insured, Loss from Claims made against Individual Insureds during the Policy Period (or, if applicable, during the Extension Period), and reported to the Underwriter pursuant to the terms of this Policy, for D&O Wrongful Acts, except to the extent the Organization has indemnified the Individual Insureds for such Loss. B. The Underwriter will pay on behalf of the Organization, Loss from Claims made against Individual Insureds during the Policy Period (or, if applicable, during the Extension Period), and reported to the Underwriter pursuant to the terrns of this Policy, for D&O Wrongful Acts, if the Organization has indenmified such Individual Insureds for such Loss. C. The Underwriter will pay on behalf of the Organization, Loss from Claims made against the Organization during the Policy Period (or, if applicable, during the Extension Period), and reported to the Underwriter pursuant to the terms of this Policy, for a D&O Wrongful Act. II. DEFINITIONS A. D&O Wrongful Act means any actual or alleged: 1. Act, error, omission, misstatement, misleading statement, neglect, breach of duty or Personal & Advertising Injury committed or attempted by an Individual Insured in his/her capacity as an Individual Insured; or by the Organization; or 2. Act, error, omission, misstatement, misleading statement, neglect, breach of duty of Personal & Advertising Injury committed or attempted by an Individual Insured while serving as a director, officer, governor or trustee of any Outside Entity, if such service is at the written request or direction of the Organization, However, D&O Wrongful Act does not include an Employment Practices Act, Fiduciary Liability Act, or Internet Liability Act. ...... Part 2 Employment Practices Liability Insurance (To be read in conjunction with the Common Policy Definitions, Exclusions, and Conditions Sections, Parts 6, 7, 8 below) I. INSURING AGREEMENTS A. The Underwriter will pay on behalf of the Insured, Loss from Claims made against the Insured during the Policy Period (or, if applicable, during the Extension FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 Page Period), and reported to the Underwriter pursuant to the terms of this Policy, for an Employment Practices Act. II. DEFINITIONS Employment Practice Act means any actual or alleged: 1. Wrongful dismissal, discharge or termination of employment; 2. Breach of a written or oral employment contract or implied employment contract; 3. Employment related misrepresentation; 4. Wrongful failure to promote; 5. Violation of employment discrimination laws (including harassment); 6. Wrongful deprivation of a career opportunity; 7. Employment related wrongful discipline; 8. Negligent employee evaluation; 9. Employment related invasion of privacy; 10. Employment related defamation (including libel and slander); 11. Sexual or workplace harassment of any kind; 12. Constructive discharge of employment; 13. Employment related retaliation; 14. Employment related humiliation; 15. Wrongful demotion; 16. Negligent reassignment; 17. Violation of any federal, state or local civil rights laws; and committed or attempted by an Individual Insured in his/her capacity as an Individual Insured or by the Organization. FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 Page Solely with respect to any Claim brought by or on behalf of any Third Party, Employment Practices Act means any.actual or alleged wrongful failure to employ, discrimination, sexual harassment or violation of such Third Party's civil rights in relation to such wrongful failure to employ, discrimination or sexual harassment, whether direct, indirect, or unintentional, committed by an Individual Insured in his/her capacity as an Individual Insured or by the Organization. B. Third Party means any natural person who is an active or current customer, supplier, vendor, applicant, business invitee or other client of the Organization. Part 6 Common Policy Definitions ....... (The Pro-Pak Elite Enhancement PI-NPD-82 NY (10/12) endorsement and the New York-Changes PI-NPD-NY (12/10) endorsement modify insurance provided under some of the following Part 6 Common Policy Definitions as indicated below.) A. Application means the Application attached to and forming a part of this Policy, including any materials submitted in connection therewith, and on filewith the insurer. New York - Changes PI-NPD-NY endorsement at Section Item (see, (12/10) H, A.) B. Claim means for the purposes of Parts 1, 2, 3 and 5: 1. Any written demand for monetary or non-monetary relief;or 2. Any judicial, civil, administrative, regulatory, or arbitration proceeding (including any appeal therefrom), or 3. Any written request to toll or waive the statute of limitations applicable to any actual or potential suit of cause of action against an Insured. However, Claim shall not include a labor or grievance proceeding pursuant to a Collective bargaining agreement. Claim, will also mean any criminal proceeding commenced by return of an indictment, to the extent permitted by applicable corporate statute. With respect to Claims brought under Part 2 of this policy only, Item B., Claim, will also mean proceedings before the Equal Employment Opportunity Commission or any similar governmental agency. (see, Pro-Pak Elite Enhancement PI-NPD-82 NY (12/06) endorsement at Par. 2.†. FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 Page 8 and 2.B, Amendment of Definitions) Claim is also amended, in relevant part, to include: Any written demand or binding adjudication of liabilityfor non-pecuniary reliefunder Item 1. or 2. of the definition of Claim. A Claim will be deemed to have been made when such written notice is firstreceived by the Insured, Itis a conditioD precedent to coverage under this Policy that allClaims be reported in compliance with the Notice/Claim Reporting Provisions of this Policy. (see, New York-Changes endorsement PI-NPD-NY (12/10) at Section II,Par. B.) C. Damages means - Solely with respect to Parts 1, 2, ...., Item C. Damage, is replaced with the following: C, Damage means a monetary judgment, award or settlement including punitive or exemplary damages (including pre-judgment interest thereon) to the extent such punitive and exemplary damages are insurable under applicable law or any jurisdiction which has a substantial relationship to the Insured or to the Claim seeking such damage and which is most favorable to the insurability of such damage and then only on an amount not greater than the amount of compensatory damages awarded in such Claim, provided however, that no such coverage is available for proceedings within the state of New York. (see, Pro-Pak Elite Enhancement endorsement PI-NPD-82NY (12/06), Damage, at Item 2.C., Part 6, Amendment of Definitions) D. Defense Costs means: 1. Any reasonable and necessary legal fees and expenses incurred in the defense of a Claim, whether by the Insured with the Onderwriter's consent or directly by the Underwriter, in the investigation, adjustment, defense, and appeal of a Claim; except that Defense Costs shall not include: a. Any amounts incurred in the defense of any Claim for which any other insurer has a duty to defend, regardless of whether or not such other insurer undertakes such duty; ...... FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 D. Defense Cost will also mean any pre-judgment interest on the portion of any judgment for which the Underwriter is liable under this policy, until the Underwriter has tendered or deposited in court or otherwise such judgment amount for which the Underwriter is liable. (see, as to Item D., Pro-Pak Elite Enhancement endorsement PI- NPD-82NY (12/06) at Item 2, Part 6, Amendment of Definitions Par. D., Defense Cost.) ...... F. Individual Insured means: 1. Any individual who has been, now is,or shall become a director, officer, governor, trustee, equivalent executive, employee (whether salaried or not), volunteer, leased or temporary employee, or committee member of the Organization or, solely with respect to Part 3 (Fiduciary Liability Insurance), of any Benefit Plan; ...... With respect to Claims brought under Part 2 of this policy only, Item F., Individual Insured, will also mean any independent contractor working on behalf of the Organization in the capacity of a director or officer; solely if the Organization has agreed in writing to indemnify the independent contractor prior to the occurrence of the Employment Practices Act which is thebasis of the Claim. ...... as to Item F., Pro-Pak Elite Enhancement endorsement PI-NPD- (see, 82NY (12/06) at Item 2, Part 6, Amendment of Definitions, Par. E) G. Insured means the Organization and Individual Insured. ..... I. Loss means: 1. Damages; 2. Defense Costs; but Loss does not include: FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 1. Criminal or civil fines or penalties imposed by law, except that solely with respect to Part 3 (Fiduciary Liability Insurance) Loss includes fines or penalties imposed under Section 502(i) and (1) of ERISA; or 2. Taxes; or 3. Matters deemed uninsurable under the law to which this Policy shall be construed; or 4. Any amounts other than Defense Costs, which an Insured is obligated to pay as a result of a Claim seeking relief or redress in any form other than monetary damages; or 5. Any costs other than Defense Costs associated with any accommodation required pursuant to the Americans With Disabilities Act, the Civil Rights Act of 1964, rules or regulations promulgated thereunder, amendments thereto, or similar provisions of any federal, state,or local or common law. J. Organization means: 1. The Parent Organization, 2. Any Subsidiary, and 3. ..... ...... M. Subsidiary means: 1. Any not-for-profit entity for which, on or before the inception of the Policy Period, the Parent Organi|ation has the right to elect or select a majority of the directors or trustees, provided such entity is identified as a Subsidiary in the Application; 2. Any not-for-profit entity for which, after the inception of the Policy Period, the Parent Organization has the right to elect or select a majority of the directors or trustees, and whose assets total less than 35% of the total consolidated assets of the Parent Organization as of the inception date of this Policy Period. The Parent Organization shall provide the Underwriter with full particulars of the new Subsidiary before the end of the Policy Period; 3. Any not-for-profit entity for which, after the inception of the Policy Period, the Parent Organization has the right to elect or select a majority FILED: SUFFOLK COUNTY CLERK 11/16/2022 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/16/2022 Page ___ _____ of the directors or trustees, and whose assets total 35% or more of the total consolidated assets of the Parent Organization as of the inception date of this Policy Period; but only upon the condition that before the end of the Policy Period or within 90 days from having the right to elect or select a majoiity of the directors or trustees, whichever is lesser, the Parent Organization shall have provided the Underwriter with full particulars and agreed to any additional premium and/or amendment of the provisions of this Policy; 4. Any forprofit entity or the directors,.officers, or trustees of a for profit entity for which, the Underwriter, upon such terms or additional premium charged. Further, coverage as shall be afforded by paragraphs 3. and 4. above, is conditioned upon the Parent Organization·paying when due any applicable additional premium required by the Underwriter relating to such new Subsidiary. The Pro-Pak Elite Enhancement PI-NPD-82NY (12/06) endorsement states: H. Item M., Subsidiary, will also mean any not-for-profit entity for