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FILED: ONONDAGA COUNTY CLERK 02/20/2019 02:45 PM INDEX NO. 008588/2018
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/20/2019
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
BRIAN C. PRUSIK
Plaintiff, AFFIDAVIT OF STEPHEN P.
BURKE, ESQ.
vs.
Index No.: E008588/2018
LIBERTY MUTUAL INSURANCE GROUP INC.,
GEDDES FEDERAL SAVINGS AND LOAN
ASSOCIATION,
Defendants.
STATE OF NEW YORK)
COUNTY OF MONROE): ss
Stephen P. Burke, Esq. being duly sworn deposes and says:
1. I am an attorney at law associated with the law firm of Woods Oviatt Gilman
LLP, the attorneys for Plaintiff Brian C. Prusik the above-captioned matter. As such, I am fully
familiar with the facts and circumstailees surrounding this matter.
2. I make this Affidavit based upon my personal knowledge of the facts set forth
herein and in support of Plaintiffs Motion to Compel Defendant Liberty Mutual Insurance Group
("Liberty Mutual") to provide responses to Plaintiffs discovery demands and produce certaiii
documents and records.
3. This Motion is made on behalf of Plaintiff against Liberty Mutual for: (1) an
Order pursuant to CPLR 3124 compelling responses to Plaintiffs Omnibus Discovery Demands,
First Interrogatories, and First Demand for Production of Documents; (2) a Conditional Order
pursuant to CPLR 3126 directing that, if Liberty Mutual fails to comply with the Court's order
compelling a response to Plaintiffs Omnibus Discovery Demands, First Interrogatories, and First
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FILED: ONONDAGA COUNTY CLERK 02/20/2019 02:45 PM INDEX NO. 008588/2018
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/20/2019
Demand for Production of Documents within 20 days, Liberty Mutual's Answer shall be stricken
and a judgment shall be entered in Plaintiffs favor by default against Liberty Mutual; (3) an
attorneys'
Order awarding Plaintiff his fees and costs associated with bringing this motion; and
(4) for an Order granting such other and further relief as the Court deems just and necessary.
BRIEF FACTUAL SUMMARY
4. This is an action for damages suffered by Plaintiff due to Defendant Geddes
Federal Savings and Loan Association's ("Geddes") unauthorized removal and/or destruction of
personal property from Plaintiffs house, and Defendant Liberty Mutual's subsequent breach of
contract in refusal to provide coverage for Plaintiffs loss by theft.
Policy"
5. Plaintiff purchased a "Liberty Guard Deluxe Homeowners (the "Policy")
Prusik."
from Liberty Mutual, with the named insured as "Brian C.
loss"
6. The Policy insures "for direct physical from "theft, including attempted theft
stolen."
and loss of property from a known place when it is likely that the property has been
7. When Plaintiff discovered that his personal had been stolen, Plaintiff
property
made a claim to Liberty Mutual under the Policy for recovery or replacement of the personal
property.
8. By letter dated January 5, 2018, Liberty Mutual disclaimed coverage stating that
"your Policy does not afford coverage for personal property removed and thrown out by a
theft."
vendor, whether in error or not, as this is not covered peril and is not
9. Plaintiff now seeks discovery from Liberty Mutual pertaining the claim file and
"vendor"
the alleged exclusion upon which Liberty Mutual based its denial of coverage.
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FILED: ONONDAGA COUNTY CLERK 02/20/2019 02:45 PM INDEX NO. 008588/2018
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/20/2019
PROCEDURAL HISTORY
10. Plaintiff initiated the instant action on September 7, 2018 by filing its Summons
and Complaint with the Clerk of Onondaga County.
11. Liberty Mutual filed and served its Answer on October 11, 2018, and then a
Answer"
"Corrected on October 12, 2018, which included a missing page.
12. On or about December 3, 2018, Plaintiff served Plaintiffs Omnibus Discovery
Demands, Plaintiffs First Interrogatories, and Plaintiffs First Demand for Production of
Documents on Liberty Mutual. Copies of Plaintiffs demands are attached hereto as Exhibits
"A," "B," "C"
and respectively.
13. Liberty Mutual did not provide any responses within the 20 day time period.
14. On or about December 27, 2018, having not received a response to Plaintiffs
discovery demands, in a good faith effort to resolve the outstanding discovery issue, I sent
counsel for Liberty Mutual a letter requesting responses to the outstanding discovery demands. A
"D."
copy of my letter is attached hereto as Exhibit
15. On or about February 11, 2019, I sent counsel for Liberty Mutual an email again
requesting responses to the outstanding discovery. A copy of my February 11, 2019 email is
"E."
attached hereto as Exhibit
16. Then, on or about February 15, 2019, at nonparty depositions associated with this
matter, I inquired in person with counsel for Liberty Mutual as to the status of the outstanding
discovery. Counsel for Liberty Mutual indicated that he was aware of the outstanding discovery
and that he would provide responses shortly.
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FILED: ONONDAGA COUNTY CLERK 02/20/2019 02:45 PM INDEX NO. 008588/2018
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/20/2019
17. As of the date of this Motion, more than 70 days after serving Plaintiffs initial
demands, Plaintiff has not received any responses to its discovery demands, this
necessitating
Motion.
18. Plaintiffs discovery demañds do not seek any privileged or confidential
information. Instead, Plaintiff simply demands information and documents associated with
Plaintiffs claim file, Liberty Mutual's communications with Co-Defendant Geddes, and
documentation that Liberty Mutual intends to rely on in support of its affirmative defenses.
19. Based on the foregoing, Plaintiff respectfully requests:
a. An Order pursuant to CPLR 3124 compelling complete responses to the
outstanding discovery demands;
b. A Condition Order pursuant to CPLR 3126 directing that, if Liberty
Mutual fails to comply with the Court's Order compelling a response to
Plaintiffs. Notice to Produce within 20 days, Liberty Mutual's pleadings
shall be stricken and a judgment shall be rendered in Plaintiffs favor by
default against Liberty Mutual;
attorneys'
c. An Order awarding Plaintiff his fees and costs associated with
bringing this Motion;
d. An Order granting such other and further relief as the Court deems just
and necessary.
()/c_. Stephen P. Burke, Esq.
Sworn to his __ day of
Febru y 2019
Nota Public MONICAA EAST
Notary Public, State of New York
Qualified in Monroe County
No. 01EA6073547
0amm!se!en Expires April 22,2022
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Preview
FILED: ONONDAGA COUNTY CLERK 02/20/2019 02:45 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/20/2019 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA BRIAN C. PRUSIK Plaintiff, AFFIDAVIT OF STEPHEN P. BURKE, ESQ. vs. Index No.: E008588/2018 LIBERTY MUTUAL INSURANCE GROUP INC., GEDDES FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendants. STATE OF NEW YORK) COUNTY OF MONROE): ss Stephen P. Burke, Esq. being duly sworn deposes and says: 1. I am an attorney at law associated with the law firm of Woods Oviatt Gilman LLP, the attorneys for Plaintiff Brian C. Prusik the above-captioned matter. As such, I am fully familiar with the facts and circumstailees surrounding this matter. 2. I make this Affidavit based upon my personal knowledge of the facts set forth herein and in support of Plaintiffs Motion to Compel Defendant Liberty Mutual Insurance Group ("Liberty Mutual") to provide responses to Plaintiffs discovery demands and produce certaiii documents and records. 3. This Motion is made on behalf of Plaintiff against Liberty Mutual for: (1) an Order pursuant to CPLR 3124 compelling responses to Plaintiffs Omnibus Discovery Demands, First Interrogatories, and First Demand for Production of Documents; (2) a Conditional Order pursuant to CPLR 3126 directing that, if Liberty Mutual fails to comply with the Court's order compelling a response to Plaintiffs Omnibus Discovery Demands, First Interrogatories, and First { 70101 69: } 1 of 4 FILED: ONONDAGA COUNTY CLERK 02/20/2019 02:45 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/20/2019 Demand for Production of Documents within 20 days, Liberty Mutual's Answer shall be stricken and a judgment shall be entered in Plaintiffs favor by default against Liberty Mutual; (3) an attorneys' Order awarding Plaintiff his fees and costs associated with bringing this motion; and (4) for an Order granting such other and further relief as the Court deems just and necessary. BRIEF FACTUAL SUMMARY 4. This is an action for damages suffered by Plaintiff due to Defendant Geddes Federal Savings and Loan Association's ("Geddes") unauthorized removal and/or destruction of personal property from Plaintiffs house, and Defendant Liberty Mutual's subsequent breach of contract in refusal to provide coverage for Plaintiffs loss by theft. Policy" 5. Plaintiff purchased a "Liberty Guard Deluxe Homeowners (the "Policy") Prusik." from Liberty Mutual, with the named insured as "Brian C. loss" 6. The Policy insures "for direct physical from "theft, including attempted theft stolen." and loss of property from a known place when it is likely that the property has been 7. When Plaintiff discovered that his personal had been stolen, Plaintiff property made a claim to Liberty Mutual under the Policy for recovery or replacement of the personal property. 8. By letter dated January 5, 2018, Liberty Mutual disclaimed coverage stating that "your Policy does not afford coverage for personal property removed and thrown out by a theft." vendor, whether in error or not, as this is not covered peril and is not 9. Plaintiff now seeks discovery from Liberty Mutual pertaining the claim file and "vendor" the alleged exclusion upon which Liberty Mutual based its denial of coverage. {7010169: } 2 2 of 4 FILED: ONONDAGA COUNTY CLERK 02/20/2019 02:45 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/20/2019 PROCEDURAL HISTORY 10. Plaintiff initiated the instant action on September 7, 2018 by filing its Summons and Complaint with the Clerk of Onondaga County. 11. Liberty Mutual filed and served its Answer on October 11, 2018, and then a Answer" "Corrected on October 12, 2018, which included a missing page. 12. On or about December 3, 2018, Plaintiff served Plaintiffs Omnibus Discovery Demands, Plaintiffs First Interrogatories, and Plaintiffs First Demand for Production of Documents on Liberty Mutual. Copies of Plaintiffs demands are attached hereto as Exhibits "A," "B," "C" and respectively. 13. Liberty Mutual did not provide any responses within the 20 day time period. 14. On or about December 27, 2018, having not received a response to Plaintiffs discovery demands, in a good faith effort to resolve the outstanding discovery issue, I sent counsel for Liberty Mutual a letter requesting responses to the outstanding discovery demands. A "D." copy of my letter is attached hereto as Exhibit 15. On or about February 11, 2019, I sent counsel for Liberty Mutual an email again requesting responses to the outstanding discovery. A copy of my February 11, 2019 email is "E." attached hereto as Exhibit 16. Then, on or about February 15, 2019, at nonparty depositions associated with this matter, I inquired in person with counsel for Liberty Mutual as to the status of the outstanding discovery. Counsel for Liberty Mutual indicated that he was aware of the outstanding discovery and that he would provide responses shortly. {7010169: } 3 3 of 4 FILED: ONONDAGA COUNTY CLERK 02/20/2019 02:45 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/20/2019 17. As of the date of this Motion, more than 70 days after serving Plaintiffs initial demands, Plaintiff has not received any responses to its discovery demands, this necessitating Motion. 18. Plaintiffs discovery demañds do not seek any privileged or confidential information. Instead, Plaintiff simply demands information and documents associated with Plaintiffs claim file, Liberty Mutual's communications with Co-Defendant Geddes, and documentation that Liberty Mutual intends to rely on in support of its affirmative defenses. 19. Based on the foregoing, Plaintiff respectfully requests: a. An Order pursuant to CPLR 3124 compelling complete responses to the outstanding discovery demands; b. A Condition Order pursuant to CPLR 3126 directing that, if Liberty Mutual fails to comply with the Court's Order compelling a response to Plaintiffs. Notice to Produce within 20 days, Liberty Mutual's pleadings shall be stricken and a judgment shall be rendered in Plaintiffs favor by default against Liberty Mutual; attorneys' c. An Order awarding Plaintiff his fees and costs associated with bringing this Motion; d. An Order granting such other and further relief as the Court deems just and necessary. ()/c_. Stephen P. Burke, Esq. Sworn to his __ day of Febru y 2019 Nota Public MONICAA EAST Notary Public, State of New York Qualified in Monroe County No. 01EA6073547 0amm!se!en Expires April 22,2022 {7010169: } 4 4 of 4