Exhibit,Appendix: Barbara U. Collyer, Frank F. And Barbara U. Collyer, Iii Revocable Inter Vivos Trust v. Danielle M. Lavigne, New York Centraul Mutual Fire Insurance Company, Cfcu Community Credit Union, Town Of Lansing

On March 11, 2020 a Exhibit,Appendix was filed involving a dispute between Barbara U. Collyer, Frank F. And Barbara U. Collyer, Iii Revocable Inter Vivos Trust, and Cfcu Community Credit Union, Danielle M. Lavigne, New York Centraul Mutual Fire Insurance Company, Town Of Lansing, for Torts - Other (equitable) in the District Court of Tompkins County.

Preview
FILED: TOMPKINS COUNTY CLERK 10/23/2020 02:10 PM INDEX NO. EF2020-0162
NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 10/23/2020
C!2020-15177 Index # : EF2020-0162

Exhibit A
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R U P P 1600 LibertyBuilding,424 Main Street,Buffalo,New York 14202
P 716.854.3400 < www.ruppbaase.com
BAASE
P FA L Z G RAF MARCO CERCONE
cermner@ruppbaase.corn
CUNNINGHAMuc
A TTO R N EY S

April 29, 2020

EMAIL: pjw@truewalshlaw.com

Peter J. Walsh, Esq.

True, Walsh & Sokoni, LLP
South Hill Business Campus
950 Danby Road, Suite 310

Ithaca, New York 14850

Dear Mr. Walsh

Re: Barbara U. Collyer et al.v. Danielle M. LaVigne, et al.
Index No.: EF2020-0162
Our File No.: 0005.24077

We have been retained to represent defendant New York Central Mutual Fire
Insurance Company in the above-referenced matter.

Enclosed please find our verified answer, and notice of deposition directed to the
plaintiff. Given the current Covid-19 work restrictions, I trust that you will accept service
of our answer and deposition notice via e-mail. We have also placed a hard copy in the mail
for your service.

Thank you for your attention to this matter.

Very truly yours,

Marco Cercone

/jfj
Enclosures

cc: Rachel A. (via email - rabbott(a
Abbott, Esq only cglawoffices.com)
Luciano L. Esq. (via email -
Lama, only nino@lamalaw.com)
K. Esq. (via email -
Guy Krogh, only gkrogh@thalerandthaler.com)

Rochester JAlbany Williamsville I Jamestown

ruppbaase.com
FILED: TOMPKINS COUNTY CLERK 10/23/2020 02:10 PM INDEX NO. EF2020-0162
NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 10/23/2020
CI2020-15177 Index #: EF2020-0162

STATE OF NEW YORK
SUPREME COURT : COUNTY OF TOMPKINS

BARBARA U. COLLYER, and the
FRANK F. and BARBARA U. COLLYER, III
REVOCABLE INTER VIVOS TRUST,

Plaintiffs,

vs. Index No.: EF2020-0162

DANIELLE M. LAVIGNE,
NEW YORK CENTRAL MUTUAL FIRE
INSURANCE COMPANY,
CFCU COMMUNITY CREDIT UNION, and the
TOWN OF LANSING, NEW YORK,

Defendants.

VERIFIED ANSWER

Defendant, New York Central Mutual Fire Insurance Company ("NYCM"), by

and through itsattorneys, Rupp Baase Pfalzgraf Cunningham LLC, as and for itsverified answer

plaintiffs'
to verified complaint, herein states as follows:

1. Denies knowledge or information sufficient to form a belief with respect

to the allegations set forth in paragraphs 1, 2, 3,4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,

19, 20, 21, 22, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 46, 47, 48, 53,

54, 60, 61, 62, and 64 of the verified complaint and those same allegations as repeated and

realleged therein.
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2. Denies the allegations set forth in paragraphs 56, 57, 58, 63, and 65 ofthe

verified complaint and those same allegations as repeated and realleged therein.

3. With regard to the allegations set forth in paragraphs 5 of the verified

complaint and those same allegations as repeated and realleged therein, admits that defendant is

licensed to engage in the business of insurance in the State of New York, admits that defendant

maintains an office at 1899 Central Plaza East, Edmeston, New York 14335, refers all questions

of law to the Court, and denies knowledge or information sufficient to form a belief with respect

to the remaining allegations of that paragraph.

4. With respect to the allegations contained in paragraphs 23, 24, 25, and 49

of the verified complaint and those same allegations as repeated and realleged therein, admits

that defendant entered into a contract of insurance with plaintiffs bearing policy number ending

in 4655265, lets the terms and conditions of the insurance contract speak for themselves, and

denies knowledge or information sufficient to form a belief with respect to the remaining

allegations of those paragraphs.

5. With respect to the allegations contained in paragraphs 44, 45, 50, 51, 52,

55, and 59 of the verified complaint and those same allegations as repeated and realleged therein,

admits that defendant Danielle M. LaVigne filed a claim with NYCM, admits that defendant

assigned an adjuster to the claim, admits an investigation of defendant Danielle M. LaVigne's

insurance claim was conducted, that correspondence, communication, and documents were

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exchanged between NYCM and defendant Danielle M. LaVigne, letsthe language and terms of

the communications and documents speak for themselves, and denies knowledge or information

sufficient to form a belief with respect to the remaining allegations of those paragraphs.

6. With respect to the allegations contained in paragraphs 1, 2, 3,4, 5, 6, and

7 on page 8 and 9 of the verified complaint and those same allegations as repeated and realleged

therein, defendant submits that these paragraphs do not call for a response. If,and to the extent

responses are deemed to be required, defendant denies the allegations contained in these

paragraphs.

plaintiffs'
7. Denies each and every allegation of verified complaint not

hereinbefore specifically admitted, denied, or otherwise addressed.

FIRST AFFIRMATIVE DEFENSE

Plaintiffs'
8. verified complaint fails to state claims upon which relief may

be granted.

SECOND AFFIRMATIVE DEFENSE

9. Plaintiffs failed to mitigate their damages with respect to the incident

alleged in the verified complaint.

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THIRD AFFIRMATIVE DEFENSE

Plaintiffs'
10. complaint is ambiguous and fails to assert valid claims against

the answering defendant.

FOURTH AFFIRMATIVE DEFENSE

11. The damages alleged in the verified complaint were caused in whole or in

part by culpable conduct attributable to the plaintiffs and/or their reprmentatives.

FIFTH AFFIRMA_TIVE DEFENSE

12. The damages alleged in the verified complaint were caused or contributed

to by culpable conduct attributable to others over whom defendant did not exercise any form of

control.

SIXTH AFFIRMATIVE DEFENSE

plaintiffs'
13. Upon information and belief, claims are barred by the doctrines

of estoppel, laches, and/or unclean hands.

SEVENTH AFFIRMATIVE DEFENSE

plaintiffs'
14. Upon information and belief, allor part of the costs of alleged

loss may have been paid, replaced, or indemnified in whole or in part from collateral sources, or

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with reasonable certainty, will be replaced or indemnified in the future from such collateral

sources. To that extent, defendant requests that in the event the plaintiffs recover any judgment,

such amounts that have been or may be recovered in whole or in part from collateral sources be

plaintiffs'
determined by the court and that the amount of recovery be reduced by this amount.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs'
15. recovery, ifany, must be reduced by any sums previously paid

plaintiffs'
by collateral sources for alleged loss.

NINTH AFFIRMATIVE DEFENSE

Plaintiffs'
16. complaint is unripe and is hypothetical.

TENTH AFFIRMATIVE DEFENSE

plaintiffs'
17. Some or all of alleged loss referenced in their verified

complaint is not covered by the policy of insurance at issue.

ELEVENTH AFFIRMATIVE DEFENSE

18. Plaintiffs lack standing to bring suit with regard to the subject insurance

policy.

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TWELFTH AFFIRMATIVE DEFENSE

19. Plaintiffs are not entitled to collect any insurance policy proceeds under

the subject policy of insurance because they are not named as insureds, additional insureds,

mortgagees, or payees on thesubject policy of insurance. Plaintiffs are not in privity of contract

with this answering defendant.

THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiffs'
20. damages, ifany, were not the result of any act, error, or

omission of NYCM.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiffs'
21. claims against NYCM are barred because they lack privity of

contract.

FIFTEE_NTH AFFIRMATIVE DEFENSE

22. Plaintiffs are not intended third-party beneficiaries of the property

insurance policy alleged in the verified complaint.

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SIXTEENTH AFFIRMATIVE DEFENSE

23. There was no intent to benefit plaintiffs or any mortgagee under the terms

of the subject insurance policy.

SEVENTEENTH AFFIRMATIVE DEFENSE

24. The alleged loss referenced in the verified complaint partially was not

covered by the contract of insurance at issue.

25. The insurance contract at issue in this case contains the following

provisions:

NYC HO 7 04 17 - PREMIER PROTECTION POLICY

SECTION I - CONDITIONS

A. Insurable Interest And Limit Of Liability

Even ifmore than one person has an insurable
interest in the property covered, we will not be liable
in any one loss:

"insured"
1. To an for more than the amount of
"insured's"
such interest at the time of loss; or

2. For more than the applicable limit of liability.

26. The answering defendant's investigation of the alleged loss in the verified

complaint revealed the construction of the home located at 25 Sperry Lane, Lansing, New York

("insured premises") primarily was financed by defendant Danielle M. LaVigne's father,

Andrew LaVigne.

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27. Andrew LaVigne is not a named insured on the insurance contract at issue

and he has no interest under the policy of insurance at issue in this claim.

28. Therefore, this answering defendant did not afford coverage for the

amounts proven to be expended by Andrew LaVigne for the construction of the insured premises

because these damages are excluded from coverage under the terms of the insurance policy at

issue.

29. Pursuant to the above-referenced insurance policy provisions, this answering

defendant afforded partial coverage for the amount Danielle M. LaVigne personally expended in

designing, permitting, and constructing the insured premises

EIGHTEENTH AFFIRMATIVE DEFENSE

30. The answering defendant incorporates by reference all defenses contained

in itspartial denial letter issued to defendant Danielle M. LaVigne, a copy of which is attached

hereto as Exhibit A.

AS AND FOR A FIRST CROSS-CLAIM AGAINST
CO-DEFENDANT DANIELLE M. LAVIGNE

3 1. The answering defendant denies any negligence, carelessness, fault or

statutory violations on itspart with respect to the occurrence described in the verified complaint,

but ifthe plaintiffs recover judgment in thisaction against this answering defendant, itsliability

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will have been brought about or caused by reason of the primary negligence, carelessness, fault,

statutory violations or other culpable conduct on the part of co-defendant Danielle M. LaVigne.

32. Should plaintiffs recover judgment against this answering defendant,

co-defendant Danielle M. LaVigne shall be liable to this answering defei1dant for all or any part

of such judgment on the basis of common law and contractual indemnification or contribution to

the extent of itsrelative responsibility for the daillages caused and the judgment obtained.

WHEREFORE, defendant, New York Central Mutual Fire Insurance Company,

plaintiffs'
demands judgment dismissing the verified complaint in itsentirety, together with the

costs and disbursements of this action and such other and further relief as the Court deems just

and proper.

Dated: April 29, 2020

Buffalo, New York
RUPP BAASE PFALZGRAF CUNNINGHAM LLC
Attorneys for Defendant
New York Central Mutual Fire Insurance Company

arco Cercone, Esq.
1600 Liberty Building
Buffalo, New York 14202

(716) 854-3400

TO: TRUE, WALSH & SOKONI, LLP
Peter J. Walsh, Esq.

Attorney for Plaintiffs
South Hill Business Campus
950 Danby Road, Suite 310

Ithaca, New York 14850

(607) 273-2301

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FILED: TOMPKINS COUNTY CLERK 10/23/2020 02:10 PM INDEX NO. EF2020-0162
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C!2020-15177 Index #: EF2020-0162

ATTORNEY VERIFICATION

STATE OF NEW YORK )
: ss.
COUNTY OF ERIE )

I,Marco Cercone, make the following affirmation, under penalty of perjury:

I am an attorney with Rupp Baase Pfalzgraf Cunningham LLC, attorneys for

defendant, New York Central Mutual Fire Insurance Company. I have read the foregoing

verified answer and know itscontents. I am acquainted with the facts of this action, and

the document is true to my own knowledge, except as to matters stated to be on information and

belief. The basis for matters stated on information and belief is my investigation of the subject

matter of this action.

This verification is made by me because the defendant's principal place of

business is not in the county where I maintain my office.

Dated: April 29, 2020

Buffalo, New York

Marco ercone, Esq.

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EXHIBIT A
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m
CI2020-15177 Index #: EF2020-0162

n
New York Central Mutual Fire Insurance Company
1899 Central Plaza East, Edmeston, NY 13335-1899
800-234-6926 nycm.com

Danielle LaVigne
1278 Ridge Road

Lansing, New York 14882

Dear Ms. LaVigne:

Re: Insured: Danielle LaVigne
Claim No.: 2018-0044930

Policy No.: 4655265
Date of Loss: May 13, 2018
Loss Location: 25 Sperry Lane. Lansing. New York 14882

New York Central Mutual Fire Insurance ("NYCM") has completed itsinvestigation into the
Company
above-referenced claim. The following willconstitute NYCM's formal opinion and determination for your
claim.

The above-referenced claim under policy number 4655265 (the "Policy") is for damage to the
property
property located at 25 Sperry Lane, Lansing, New York 14882 ("insured premises"). The fireloss at the
insured premises occurred on or about May 13, 2018. You have submitted a claim under and
dwelling
personal property contained in the above-referenced policy. Based on NYCM's investigation, itwill afford
coverage for a portion of your dwelling claim and your personal property claim. However, NYCM must deny
a portion of your claim for dwelling for which you sought coverage totaling $470,000.00. Further, NYCM is

willing to make payment for that portion of your personal property claim that is substantiated. All sworn
proofs of loss we have received in connection with this claim are rejected as to the value stated.

In New York, a party not named as an insured or an additional insured on the face of a isnot entitled
policy
to coverage. Moleon v.Kreister Borg Florman General Construction Company, Inc., 304 A.D.2d 337 (1st Dep't
2003); see also Counihan v.Allstate Insurance Company, 142 F.R.D. 387, 388 (E.D.N.Y. 1992). Thus, only
those named on the policy hold an insurable interest in the property covered the policy of insurance. The
by
terms of an insurance policy determine the extent of coverage afforded to those who hold an insurable interest.
See Stainless, Inc. v. Employers Fire fas. Co., 69 A.D.2d 27, 31 (1st Dep't affd 49 N.Y.2d 924 (1980).
1979)
Under policy #4655265, Danielle LaVigne is thesole listed insured. Therefore, you are the person who
only
holds an insurable interest in the insured premises and the sole individual who isentitled to coverage under
the aforcinentioned policy ofinsurance. We refer you to the following provisions contained in your policy of
insurance.

NYC HO 7 04 17 - PREMIER PROTECTION POLICY

SECTION I - CONDITIONS

A. Insurable Interest And Limit Of Liability

Even if more than one person has an insurable
interest in the property covered, we will not be liable
in any one loss:
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Cl2020-15177 "insured" Index #: EF2020-0162
1. To an for more than the amount of
"insured's"
such interest at the time of loss; or

2. For more than the applicable limit of liability.

NYCM's investigation revealed the construction of the insured premises primarily was financed by your
father, Andrew LaVigne. Specifically, he handled the finances of the construction and expended
$437,389.27 to construct the home located at 25 Sperry Lane, Lansing, New York. These expenses
include various payments to JBM Construction, 84 Lumber, contractor Peter Brown, JD's Lawn
Maintenance, Parrot Plumbing, Sweazey's AC & Heating, Reeves Brothers, and Vitale & Robinson.
Andrew LaVigne is not a named insured on the Policy, and therefore is not entitled to coverage for the
above-referenced fireloss. Therefore, NYCM must deny this portion of your claim as Andrew LaVigne
has no interest under the policy of insurance at issue in this claim.

Notwithstanding, NYCM will afford partial coverage for your dwelling claim. Based on the
above-referenced policy provisions and applicable New York law, NYCM will afford coverage for the
amount you have proven to have personally expended in designing, permitting, and constructing the
insured premises. NYCM's investigation revealed that you expended a total of $31,917.03 during the

planning and construction process. Specifically, you expended $2,745.50 on permits for the construction
of the insured premises, $8,679.70 for building supplies, $14,912.30 for interior materials, and $5,579.53
for architecture and design. This is based on the documentation obtained by NYCM in itsinvestigation
of your claim and your sworn testimony. This number represents the dwelling claim offer for the
above-referenced claim. As you indicated in your sworn testimony during your examination under oath,
you are not seeking to be reimbursed for monies not expended by you personally in the construction of
the insured premises. Therefore, a check will be issued to you in the amount of $31,917.03 under
separate cover for the portion of your claim that has been substantiated.

Regarding your claim for personal property, you submitted a sworn proof of loss claiming $24,465.00 in
damages. Notably, this calculation does not account for depreciation. NYCM's investigation of your claim
revealed that, although the insured premises was not fully constructed, some of your personal property was
stored at the insured premises. In support of your claim, you submitted documentation evidencing various
personal property claimed to be lost in conjunction with the fireloss and provided some supporting receipts.
Based on NYCM's review of the evidence and your sworn testimony, much of your personal property claim is
unsubstantiated. Be that as itmay, and in the spirit of compromise, NYCM is willing to offer you $5,000.00
in a fulland final settlement of your personal property claim. NYCM acknowledges that, notwithstanding the
strength of itsposition, settling this matter at this juncture may be a benefit to allparties, especially
considering the abundance of legal issues surrotmding this claim. Please advise us of your position in response
to this letter with regard to NYCM's offer on your personal property claim.

Based on the forgoing, NYCM affords coverage for portions of your dwelling and personal property claims

resulting from the May 13, 2018 fire loss as outlined above. For clarification purposes, NYCM will issue a
check for $31,917.03 in regards to your dwelling claim, and iswilling to issue a check for $5,000.00 in regards
to your personal property claim, should you be willing to accept itsoffer on your claim for personal property.

Finally, should you pursue this matter further, please be advised that NYCM reserves the right to defend
itselfon other policy provisions, including, but not limited to, the following:

SECTION I - EXCLUSIONS

A. We do not insure for loss caused directly or

indirectly by any of the following. Such loss is
excluded regardless of any other cause or event

contributing concurrently or in any sequence to the
loss. These exclusions apply whether or not the loss
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CI2020-15177 Index #: EF2020-0162
ew York Central Mutual Fire Insurance Company
1899 Central Plaza East, Edmeston, NY 13335-1899
.e 800-234-6926 nycm.com
INSURANCE

event results in widespread damage or affects a
substantial area.

8. Intentional Loss

Intentional Loss means any loss arising out of
"insured"
any act an commits or conspires to
commit with the intent to cause a loss.

"insured"
This exclusion only applies to an who
commits or conspires to commit an act with the
intent to cause a loss.

* * * * *

SECTIONS I AND II- CONDITIONS

H. Concealment Or Fraud

"insured"
We do not provide coverage for the who,
whether before or after a loss, has:

1. Intentionally concealed or misrepresented any
material fact or circumstance; or

2. Engaged in fraudulent conduct;

relating to this insurance.

Furthermore, Regulation 95, Section 86.4(a) issued by the Insurance Department of the State of New York

states that:

Any person who knowingly and with intent to defraud any insurance company
or other person filesan application for insurance or statement of claim

containing any materially false information, or conceals for the purpose of

misleading, information concerning any fact material thereto, commits a
fraudulent insurance act, which isa crime and shall also be subject to a civil

penalty not to exceed five thousand dollars and the stated value of the claim for

each such violation.
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CI2020-15177 . . . Index #: EF2020-0162
u reserves allof its rights and defenses with respect to your claim and it willnot waive 1
defenses under any circumstances. New York insurance regulations require us to advise you that in the event
you wish to contest this denial in litigation, the policy requires you to commence such action within two years
of the inception of loss. Additionally, should you wish to take this matter up with the New York State
Insurance Department, you may file with the Department either on itswebsite at:
www.ins.state.ny.us/complhow.htm or you may write to or visitthe Consumer Services Bureau, New York
State Insurance Department at: One State Street, New York, NY 10004; One Commerce Plaza, Albany, N Y

12257; 1339 Franklin Ave, Garden City, NY 11530 or Walter J. Mahoney Office Building, 65 Court Street,
Buffalo, NY 14202.

Sincerely,

Jacalyn A Wise

Property Examiner III

cc: Marco Cercone, Esq
(via email only)
FILED: TOMPKINS COUNTY CLERK 10/23/2020 02:10 PM INDEX NO. EF2020-0162
NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 10/23/2020
CI2020-15177 Index #: EF2020-0162

STATE OF NEW YORK
SUPREME COURT : COUNTY OF TOMPKINS

BARBARA U. COLLYER, and the
FRANK F. and BARBARA U. COLLYER, III
REVOCABLE INTER VIVOS TRUST,

Plaintiffs,

vs. Index No.: EF2020-0162

DANIELLE M. LAVIGNE,
NEW YORK CENTRAL MUTUAL FIRE
INSURANCE COMPANY,
CFCU COMMUNITY CREDIT UNION, and the
TOWN OF LANSING, NEW YORK,

Defendants.

NOTICE OF DEPOSITION

Pursuant to CPLR 3107, the testimony upon oral exnñiiñation of plaintiff

Barbara U. Collyer and a representative of plaintiff Frank F. and Barbara U. Collyer, III

Revocable Inter Vivos Trust, will be taken at a location to be determined in Tompkins County,

New York, on a date and time to be mutually agreed upon, with respect to matters material and

necessary to the defense of this action.

Dated: April 29, 2020

Buffalo, New York
RUPP BAASE PFALZGRAF CUNNINGHAM LLC
Attorneys for Defendant
New York Central Mutual Fire Insurance Company

By:
arco Cercone, Esq.
1600 Liberty Building
Buffalo, New York 14202

(716) 854-3400
FILED: TOMPKINS COUNTY CLERK 10/23/2020 02:10 PM INDEX NO. EF2020-0162
NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 10/23/2020
CI2020-15177 Index #: EF2020-0162

TO: TRUE, WALSH & SOKONI, LLP
Peter J. Walsh, Esq.

Attorney for Plaintiffs
South Hill Business Campus
950 Danby Road, Suite 310

Ithaca, New York 14850

(607) 273-2301

- 2 -

Case Info

Judge

Christopher P Baker Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 23, 2020

Case Filing Date

March 11, 2020

County

Parties

ABBOTT, RACHEL ANN Attorney for the Defendants
Barbara U. Collyer Plaintiff
BYRNS, SHAWN Attorney for the Defendant
CAMPANELLA, ANTHONY JOHN Attorney for the Defendant
CERCONE, MARCO Attorney for the Defendant
CFCU Community Credit Union Defendant
Danielle M. Lavigne Defendant
Frank F. and Barbara U. Collyer, III Revocable Inter Vivos Trust Plaintiff
GRABER, JAMES JUDE Attorney for the Defendant
KROGH, GUY KRISTENSEN Attorney for the Defendants
LAMA, LUCIANO L. Attorney
LAMA, LUCIANO L. Attorney for the Defendant
LIPPES MATHIAS LLP Attorney for the Defendant
Luciano L Lama Non Party
New York Centraul Mutual Fire Insurance Company Defendant
RUPP BAASE PFALZGRAF CUNNINGHAM LLC Attorney for the Defendant
Town of Lansing Defendant
WALSH, PETER JOSEPH Attorney for the Plaintiff
ELIZA MULHERN Attorney
THOMAS BOUMAN Attorney
LIAM MURPHY Attorney
Rachel Aichelmann Attorney
DANIEL HARRIS Attorney

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