Preview
FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
---------X
PAUL RADENBERG as Administrator of the Estate of Index No.: 150253/2019
Estate of Robert Niemis,
Plaintiff, AFFiRMATION IN
SUPPORT OF
-against- PLAINTIFF'S MOTION TO
CONSOLIDATE AND FOR
SUMMARY JUDGMENT
NATIONAL SPECIALTY INSURANCE COMPANY,
Defendant.
-- -------- ---------- ------X
RODNEY STlLWELL, an attorney at law duly admitted to practice law in the Courts of the
State of New York, affirms the foliewing under the pains and penalties of perjury:
1. Your affirmant is a partner with the law firm of TRACY & STILWELL, P.C., attorneys
for the plaintiff, PAUL RADENBERG as Administrator of the Estate of Robert Niêmis, and, as such,
am fully familiar with the facts and circumstances of this case based upon my review of the files
maintained by my office and my personal involvement in the prosecution of both actions.
2. This affirmation is submitted in support of plaintiff's CPLR §602(a) motion to
consolidate the within action (hereinafter "Radenberg I") with an action pending in this court,
also beforê the Honorable Lizette Colon, bearing index No. 151728/2020 (hereinafter
"Radenberg II"), for summary judgment pursuant to CPLR §3212 and for such other and further
relief as to this Court may deem just and proper.
BACKGROUND & PROCEDURAL HISTORY
3. By way of background, this matter originated from an incident that occurred on
June 11, 2011 when Robert Niemis fell off the roof of a two-story building at 4164 Victory
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Boulevard in Staten Island (hereinafter "premises") (Exhibit 1, pages 00055, 00063; Exhibit 2).
The defendant's insured, Scooby's Doodles, inc. (hereinafter "Scooby's) was a ground floor
tenant of the premises operating a tavern business at the time of the occurrence (14). As a result
of the fall, Niemis sustained fatal injuries (Exhibit 1, page 00055). Paul Radêñberg, decedent's
nephew, was appointed estate administrator and filed a third-party action in this court against
Scooby's and other defendants (Index No. 102927/12) (Exhibit 1, pages 00069 to 00102). The
gravamen of the claim against Scooby's was that its employee(s) served Niemis alcoholic
beverages, got him drunk, and then kñ0wiñgly permitted him to climb up to the roof of the
premises without warning him of the inherent dangers in doing so (Exhibit 2, paragraphs 6, 7, 10
- 31).
15,
4. Scooby's was insured for this claim by defendant herein, NATIONAL SPECIALTY
INSURANCE COMPANY (hereinafter (Exhibit 1 pages 00010 - 00014 -
"NSIC") 00011, 00015,
00021, and 00106; Exhibit 3, page 22, line 6 to page 25, line 2). Upon information and belief, on
June 13, 2011, Regina Rotondo of Scooby's notified her insurance broker via email about the
incideñt and the broker then forwarded the Notice of Occurrence, along with Ms. Rotondo's
to the defendant (Exhibit 1 pages 00008 (Item 00012 - 00027 (second full
email, 7), 00014;
paragraph only); Exhibit 3, page 25 lines 3-25). The underlying third-party lawsuit was
commenced in or about September 2012 (Exhibit 1, pages 00063, 00069-00073). On or about
November 27, 2012 Risk Control Associates (hereinafter "RCA"), the authorized third-party
administrator for NSIC, retained the law firm of Lewis Brisbois Bisgaard & Smith, LLP (hereinafter
"Lewis Brisbois") to defend Scooby's in the third-party action (Exhibit 1, page 00063). Lewis
Brisbois appeared in the action on behalf of Scooby's (Exhibit 1, pages 00085-00101).
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5. On or about May 5, 2014 RCA directed Lewis Brisbois to stop representing
Scooby's in the action and to withdraw as counsel (Exhibit 1, pages 00062-00063). On May 15,
2014 Lewis Brisbois filed an Order to Show Cause ("OTSC") to be relieved as counsel for Scooby's
in the underlying third-party action (Exhibit 1, pages 00060-00129). According to Tammy A.
Wilson, the attorney at the Lewis Brisbois firm whose affirmation accompanied the OTSC, the
OTSC was filed "upon the grounds that Risk Control Associates, Inc. ("RCA"), the managing agent
for National Insurance Company ("NSIC"), Scooby's insurance carrier, has directed this law firm
matter"
to immediately cease representing Scooby's in coññêction with this (Exhibit 1, page
00062).
6. On September 17, 2014, the court issued an order relieving Lewis Brisbois as
Scooby's attorney (Exhibit 4). Thereafter, on January 6, 2014, some 246 days after RCA ordered
Lewis Brisbois to stop representing Scooby's, NSIC allegedly disclaimed coverage based solely on
"non-cooperation"
Scooby's by correspondence on the letterhead of State Auto a||êged|y
mailed/addressed to Ms. Rotondo at addresses in Pennsylvania and Staten Island (Exhibit 1pages
00036 to 00038).
7. Scooby's failed to appear in court for several conference after the Lewis Brisbois
firmed was relieved in September 2014. A default was therefore entered against Scooby's and,
pursuant to notice served on December 15, 2016 (Exhibit 1, pages 00046 -00049), an inquest on
the issue of damages was held on January 30, 2017, and a decision was entered by the court on
June 1, 2017 awarding plaintiff's decedent $500,000 for conscious pain and suffering (Exhibit 1
pages 00055 -00056). On July 14, 2017 a Judgmêñt, including costs and interest, in the sum of
$504,362.12 entered on June 30, 2017, was served with Notice of Entry pursuant to Insurance
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Law §3420(a)(2) on, inter alia, Lewis Brisbois, Scooby's and RCA (Exhibit 1, pages 00051-00058).
8. The Judgment remained unsatisfied for more than 30 days after service with
Notice of Entry. Radenberg I was commenced in February 2019 via the filing and service of a
Summons and Verified Complaint (Exhibit 5). Issue was joined via the service of a Verified Answer
(Exhibit 6) in May 2019.
9. On June 3, 2019 plaintiff served a written Notice for Discovery and Inspection
upon defense counsel (Exhibit pages 00001 - inter the
1, 000007) demanding, alia, following
documents:
- 1. of all insurance coverage for portion of the
Copy policy(ies) providing liability any
premises in effect on June 20, 2011;
- 2. of all declaration to the insurance
Copy page(s) policy(ies) providing liability
insurance coverage for any portion of the premises in effect on June 20, 2011;
- 3. Copies of all application for insurance insurance
policy(ies) providing liability
coverage for any portion of the premises in effect on June 20, 2011;
- 4. Copies of all endorsements to the insurance policy(ies) praviding liability
insurance coverage for any pcitian of the premises in effect on June 20, 2011;
- of all communicaticñs letter or otherwise) between NSIC and Scooby's
copy (by email,
relating to the premises;
- of all communications letter or otherwise) between NSIC and its third-
copy (by email,
party administrator relating to the premises;
- of all written agreements (in electronic form or otherwise) between NCIS and its
copy
third-party administrator relating to the premises;
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- copies of all documents in the possession and/or control of NSIC attempts
evidencing
by its attorneys, agents, servants and/or empicyêês to communicate with and/or
contact Scooby's in connection with the underlying personal injury action;
- copies of all documents in the possession and/or control of NSIC attempts
evidêñcing
by NSIC, its attorneys, agents, servants and/or empicyees to obtain the cooperation
of its insured Scooby's in the defense of the underlying personal injury action;
- and of telephone conversations in which the its
note(s) recording(s) any NSIC,
attorneys, agents, servants and/or employees attempted to obtain the cooperation
of Scooby's in the defense of the underlying personal injury litigation;
- copies of all the claims files in the possession and/or control of NSIC and/or its third-
party administrator relating to the defense of the underlying personal injury litigation;
- copies of all documents in the possession and/or control of NSIC and/or its third-party
administrator which NSIC intends to rely upon in the defense of the action;
- copies of all investigative in the possession and/or control of the NSIC and/or
file(s)
its third-party administrator which NSIC intends to rely upon in the defense of the
action;
- copies of all correspcadence with proof of sent or on behalf of the
along mailing by
NSIC and/or its third-party administrator to Scooby's seeking to secure the
cooperation of Scooby's in the defense of the underlying personal injury; and
- copies of all correspcadêñce with proof of sent or on behalf of the
along mailing by
NSIC and/or its third-party administrator to Scooby's disclaiming coverage due, at
least in part, to the failure or refusal by the said insured to cooperate in the defense
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of the underlying personal injury litigation.
10. Defendant's response dated September 11, 2019 (Exhibit 1, pages 00008 to
00041) to plaintiff's June 3, 2019 document demand contains only the foilewing items:
- the insurance Declarations Page (Exhibit 00010 -
policy 1, pages 0008, 00011);
- notice of incident an email from Rotondo
the including (Exhibit 1, pages 00012 to
00014);
- without proof of on letterhead of RCA addressed to Regina
correspondence, mailing,
Rotondo dated January 15, 2013 (Exhibit 1, pages 00015 to 00020), Decêmber 11,
2013 (Exhibit 1, pages 00027 to 00029) and March 20, 2014 (Exhibit 1, pages 00030 to
00031);
- correspondence on letterhead of Lewis Brisbois dated December 2012 (Exhibit
19, 1,
pages 00021to 00024), March 20, 2013 (Exhibit 1, pages 00025 to 00026) and April 2,
2014 (Exhibit 1, pages 00032 to 00035); and
- without proof of on letterhead of State Auto dated
correspondêñce, mailing, January
6, 2015 (Exhibit 1, pages 00036 to 00039).
Defendant's response did not include any of the following items:
- the insurance app!ication for insurance or endorsements to the
underlying policy,
policy;
- emails sent to Scooby's (though NSIC had an email address for Scooby's principal
(Exhibit 1, page 00013));
- emails between NSIC and its TPA;
- correspondence via letter or email between NSIC and its TPA;
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- documents other than those described above attempts its
evidencing by NSIC,
attorneys, agents, servants and/or employees to communicate with and/or contact
Sccaby's in connection with the underlying personal injury action;
- documents other than those described above attempts its
evidencing by NSIC,
attorneys, agents, servants and/or employees to obtain Scooby's cooperation in the
defense of the underlying personal injury action;
- and of telephone conversations in which the its
note(s) recording(s) any NSIC,
attorneys, agents, servants and/or smpicyees attempted to obtain Scooby's
cooperation in the defense of the underlying personal injury litigation;
- claims in the possession and/or control of NSIC and/or its
file(s) third-party
administrator relating to the defense of the underlying personal injury litigation;
- other than those described in the possession and/or control of
documents, above,
NSIC and/or its third-party administrator which NSIC intends to rely upon in the
defense of this action;
- investigative in the possession and/or control of the NSIC and/or its third-party
file(s)
administrator which NSIC intends to rely upon in the defense of this action;
- proof of of correspondence sent NSIC and/or its
mailing any by third-party
administrator to Scooby's seeking to secure the cooperation of Scooby's in the
defense of the underlying personal injury; or
- proof of of correspondence sent or on behalf of the NSIC and/or its
mailing any by
third-party administrator to Scooby's disclaiming coverage.
11. Plaintiff served a response to defendant's document demand on April 13, 2020
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(Exhibit 00042 - 00131). Radenberg's deposition was defense counsel. The
1, pages waived by
deposition of defendant's witness, Margaret Erife (hereinafter "Erife") was conducted on August
6, 2020 (Exhibit 3).
Synopsis of Defendant's Relevant Deposition Testimony
12. Erife worked as a senior claim's examiner for State Auto Insurance Company
(hereinafter "State Auto"), a property casualty insurance company, from September 2011 until
March 2017 (Exhibit 3, page 7 -8). Her training included an associate degree in insurance and a
in claims law (M. at page 15, lines 3 to page 16, line 2). As a senior claim's examinêr, Erife worked
with defense counsel on claims that were in suit (g. @ page 8). NSIC fell under the umbrella of
State Auto (jd. @ page 25, line to page 24, line 2).
13. RCA was the third-party administrator ("TPA") handling the Radenberg claim for
NSIC before State Auto took over that role (I_d. at page 19, line 19 to page 20, line 19; page 22,
line 21 to page 25, line 2; Exhibit 1, page 10), presumably sometime between April 2, 2014
(Exhibit 1, page 00032) and January 6, 2015 (Ld. page 00036). The TPA handles and adjusts the
claim on behalf of the insurance carrier (Exhibit 3 page 20, lines 2 to 10).
14. Erife handled the Radenberg third party action while at State Auto. She has no
independent memory of the claim and her review of the documents exchanged by defense
counsel (Exhibit 1, pages 00008 to 00041) did not refresh her memary (Exhibit 3 page 13, line 1
to page 14, line 13). She could identify her signature on a January 6, 2015 correspcadence on
State Auto letterhead (Exhibit - but recall if she
1, pages 00036 00039) could not generated the
correspondence or if it was mailed (Exhibit 3, page 11, line 23 to page 13, line 11; page 14, line
6th
14 to page 15, line 5; page 58, line 23 to page 60, line 11). She identified the January
8 of 25
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letter"
correspondence as a "disclaimer intended for the policyhclder but could not explain why
the correspondence was not addressed to Scooby's (M. at page 16, line 3 to page 19, line 3).
6th
Furthermore, that the January COrreSpOndence, if sent, would have been the only disclaimer
letter mailed to the insured (g. at page 20, line 20 to page 22, line 2).
15. Erife responded to questions concerning the correspcadêñce on RCA letterhead
included with defendant's discovery response (Exhibit 1, pages 00008 to 00041). She could not
tell us the import of the correspondence on RCA letterhead of January 15, 2013 (M. at pages
00015 to 00017; Exhibit 3, page 28, lines 6 to 20) and has no personal kñcwledge of whether that
letter was sent (Exhibit 3, page 26, line 2 to 16). It is not a disclaimer letter (M. @ page 26, line 2
to page 28, line 5). Correspondence on RCA letterhead dated December 11, 2013 and March 20,
2014 (Exhibit pages 00027 to pages 00030 - are also not disclaimer letters
1, 00029; 00031)
(Exhibit 3, page 35, line 21 to page 36, line 9; page 36, line 10 to page 37, line 24).
failures"
16. Erife could not identify any "systematic of Scooby's to cooperate in the
defense of the lawsuit (Exhibit 3, page
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(Opp., p. 2:11-14; Liss Decl., ¶ 8.)
Thus, Defendant does not appear to dispute that it did not fully comply with the courts order directing it to produce responsive documents to Plaintiffs within 20 days of the date of the order.
Moreover, Defendant has not presented argument or authority establishing that its request that Plaintiffs narrow their list to defects which allegedly were not repaired after a reasonable number of repair attempts complied with the courts order to meet and confer regarding which defects are alleged in Plaintiffs Complaint.
(Liss Decl., ¶ 7; Oct. 24, 2023 Order, p. 3:11-16.)
To remedy the prejudice to Plaintiffs as a result of Defendants failure to fully comply with the courts order, the court will order Defendant to serve further written responses to Plaintiffs document demands and to produce responsive documents based on the list of defects provided by Plaintiffs counsel on November 7, 2023, except that Defendant will not be required to serve responses and to produce documents regarding the chronometer and chassis error defects.
(Kohanoff Reply Decl., ¶ 6 [during the parties March 20, 2024 meet and confer conversation, Plaintiffs agreed to strike the requests regarding the chronometer o[r] the Chassis].)
The court denies Plaintiffs request, made in their reply papers, that the court impose prospective sanctions of $500 per day against Defendant.
ORDER
The court grants in part plaintiffs Antonio Capulong and Robert Capulongs motion to compel compliance as follows.
The court orders defendant Porsche Cars North America, Inc. (1) to serve on plaintiffs Antonio Capulong and Robert Capulong further written responses to plaintiffs Antonio Capulong and Robert Capulongs Requests for Production of Documents, Set Two, (i) numbers 5-6,
(ii) numbers 7-11, 14, 16, 18-22, 25, 27, 29-33, 36, 38, 40-43, 46, and 48, but limited to Defendants producing any internal analysis or investigation regarding the defects set forth in the November 7, 2023 email from counsel for
plaintiffs Antonio Capulong and Robert Capulong
in vehicles for the same year, make, and model of the subject vehicle,
except as to Defects resulting in chronometer inoperative and Defects resulting in Chassis Error Indicator illuminating,
and (iii) numbers 12-13, 15, 23-24, 26, 34-35, 37, 44-45, and 47, but limited to Defendants producing any customer complaints relating to the defects set forth in the November 7, 2023 email from counsel for
plaintiffs Antonio Capulong and Robert Capulong
in vehicles purchased or leased in California for the same year, make, and model of the subject vehicle,
except as to Defects resulting in chronometer inoperative and Defects resulting in Chassis Error Indicator illuminating
, and (2) to produce to plaintiffs Antonio Capulong and Robert Capulong all documents and things in defendant Porsche Cars North America, Inc.s possession, custody, or control which are responsive to those requests (and limited as set forth above), within 15 days of the date of this order.
The court denies plaintiffs Antonio Capulong and Robert Capulongs request for monetary sanctions.
The court orders plaintiffs Antonio Capulong and Robert Capulong to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 11, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
Ruling
Richard Bartel vs Chicago Title Insurance Company
Jul 14, 2024 |
16CV02814
16CV02814
BARTEL v. CHICAGO TITLE INSURANCE COMPANY
(UNOPPOSED) PLAINTIFF BARTEL’S MOTION TO TAX COSTS
Given the parties representation that they are finalizing a stipulation, no tentative will be
posted.
Page 3 of 3
Preview
FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---------X PAUL RADENBERG as Administrator of the Estate of Index No.: 150253/2019 Estate of Robert Niemis, Plaintiff, AFFiRMATION IN SUPPORT OF -against- PLAINTIFF'S MOTION TO CONSOLIDATE AND FOR SUMMARY JUDGMENT NATIONAL SPECIALTY INSURANCE COMPANY, Defendant. -- -------- ---------- ------X RODNEY STlLWELL, an attorney at law duly admitted to practice law in the Courts of the State of New York, affirms the foliewing under the pains and penalties of perjury: 1. Your affirmant is a partner with the law firm of TRACY & STILWELL, P.C., attorneys for the plaintiff, PAUL RADENBERG as Administrator of the Estate of Robert Niêmis, and, as such, am fully familiar with the facts and circumstances of this case based upon my review of the files maintained by my office and my personal involvement in the prosecution of both actions. 2. This affirmation is submitted in support of plaintiff's CPLR §602(a) motion to consolidate the within action (hereinafter "Radenberg I") with an action pending in this court, also beforê the Honorable Lizette Colon, bearing index No. 151728/2020 (hereinafter "Radenberg II"), for summary judgment pursuant to CPLR §3212 and for such other and further relief as to this Court may deem just and proper. BACKGROUND & PROCEDURAL HISTORY 3. By way of background, this matter originated from an incident that occurred on June 11, 2011 when Robert Niemis fell off the roof of a two-story building at 4164 Victory 1 of 25 FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 Boulevard in Staten Island (hereinafter "premises") (Exhibit 1, pages 00055, 00063; Exhibit 2). The defendant's insured, Scooby's Doodles, inc. (hereinafter "Scooby's) was a ground floor tenant of the premises operating a tavern business at the time of the occurrence (14). As a result of the fall, Niemis sustained fatal injuries (Exhibit 1, page 00055). Paul Radêñberg, decedent's nephew, was appointed estate administrator and filed a third-party action in this court against Scooby's and other defendants (Index No. 102927/12) (Exhibit 1, pages 00069 to 00102). The gravamen of the claim against Scooby's was that its employee(s) served Niemis alcoholic beverages, got him drunk, and then kñ0wiñgly permitted him to climb up to the roof of the premises without warning him of the inherent dangers in doing so (Exhibit 2, paragraphs 6, 7, 10 - 31). 15, 4. Scooby's was insured for this claim by defendant herein, NATIONAL SPECIALTY INSURANCE COMPANY (hereinafter (Exhibit 1 pages 00010 - 00014 - "NSIC") 00011, 00015, 00021, and 00106; Exhibit 3, page 22, line 6 to page 25, line 2). Upon information and belief, on June 13, 2011, Regina Rotondo of Scooby's notified her insurance broker via email about the incideñt and the broker then forwarded the Notice of Occurrence, along with Ms. Rotondo's to the defendant (Exhibit 1 pages 00008 (Item 00012 - 00027 (second full email, 7), 00014; paragraph only); Exhibit 3, page 25 lines 3-25). The underlying third-party lawsuit was commenced in or about September 2012 (Exhibit 1, pages 00063, 00069-00073). On or about November 27, 2012 Risk Control Associates (hereinafter "RCA"), the authorized third-party administrator for NSIC, retained the law firm of Lewis Brisbois Bisgaard & Smith, LLP (hereinafter "Lewis Brisbois") to defend Scooby's in the third-party action (Exhibit 1, page 00063). Lewis Brisbois appeared in the action on behalf of Scooby's (Exhibit 1, pages 00085-00101). 2 of 25 FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 5. On or about May 5, 2014 RCA directed Lewis Brisbois to stop representing Scooby's in the action and to withdraw as counsel (Exhibit 1, pages 00062-00063). On May 15, 2014 Lewis Brisbois filed an Order to Show Cause ("OTSC") to be relieved as counsel for Scooby's in the underlying third-party action (Exhibit 1, pages 00060-00129). According to Tammy A. Wilson, the attorney at the Lewis Brisbois firm whose affirmation accompanied the OTSC, the OTSC was filed "upon the grounds that Risk Control Associates, Inc. ("RCA"), the managing agent for National Insurance Company ("NSIC"), Scooby's insurance carrier, has directed this law firm matter" to immediately cease representing Scooby's in coññêction with this (Exhibit 1, page 00062). 6. On September 17, 2014, the court issued an order relieving Lewis Brisbois as Scooby's attorney (Exhibit 4). Thereafter, on January 6, 2014, some 246 days after RCA ordered Lewis Brisbois to stop representing Scooby's, NSIC allegedly disclaimed coverage based solely on "non-cooperation" Scooby's by correspondence on the letterhead of State Auto a||êged|y mailed/addressed to Ms. Rotondo at addresses in Pennsylvania and Staten Island (Exhibit 1pages 00036 to 00038). 7. Scooby's failed to appear in court for several conference after the Lewis Brisbois firmed was relieved in September 2014. A default was therefore entered against Scooby's and, pursuant to notice served on December 15, 2016 (Exhibit 1, pages 00046 -00049), an inquest on the issue of damages was held on January 30, 2017, and a decision was entered by the court on June 1, 2017 awarding plaintiff's decedent $500,000 for conscious pain and suffering (Exhibit 1 pages 00055 -00056). On July 14, 2017 a Judgmêñt, including costs and interest, in the sum of $504,362.12 entered on June 30, 2017, was served with Notice of Entry pursuant to Insurance 3 of 25 FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 Law §3420(a)(2) on, inter alia, Lewis Brisbois, Scooby's and RCA (Exhibit 1, pages 00051-00058). 8. The Judgment remained unsatisfied for more than 30 days after service with Notice of Entry. Radenberg I was commenced in February 2019 via the filing and service of a Summons and Verified Complaint (Exhibit 5). Issue was joined via the service of a Verified Answer (Exhibit 6) in May 2019. 9. On June 3, 2019 plaintiff served a written Notice for Discovery and Inspection upon defense counsel (Exhibit pages 00001 - inter the 1, 000007) demanding, alia, following documents: - 1. of all insurance coverage for portion of the Copy policy(ies) providing liability any premises in effect on June 20, 2011; - 2. of all declaration to the insurance Copy page(s) policy(ies) providing liability insurance coverage for any portion of the premises in effect on June 20, 2011; - 3. Copies of all application for insurance insurance policy(ies) providing liability coverage for any portion of the premises in effect on June 20, 2011; - 4. Copies of all endorsements to the insurance policy(ies) praviding liability insurance coverage for any pcitian of the premises in effect on June 20, 2011; - of all communicaticñs letter or otherwise) between NSIC and Scooby's copy (by email, relating to the premises; - of all communications letter or otherwise) between NSIC and its third- copy (by email, party administrator relating to the premises; - of all written agreements (in electronic form or otherwise) between NCIS and its copy third-party administrator relating to the premises; 4 of 25 FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 - copies of all documents in the possession and/or control of NSIC attempts evidencing by its attorneys, agents, servants and/or empicyêês to communicate with and/or contact Scooby's in connection with the underlying personal injury action; - copies of all documents in the possession and/or control of NSIC attempts evidêñcing by NSIC, its attorneys, agents, servants and/or empicyees to obtain the cooperation of its insured Scooby's in the defense of the underlying personal injury action; - and of telephone conversations in which the its note(s) recording(s) any NSIC, attorneys, agents, servants and/or employees attempted to obtain the cooperation of Scooby's in the defense of the underlying personal injury litigation; - copies of all the claims files in the possession and/or control of NSIC and/or its third- party administrator relating to the defense of the underlying personal injury litigation; - copies of all documents in the possession and/or control of NSIC and/or its third-party administrator which NSIC intends to rely upon in the defense of the action; - copies of all investigative in the possession and/or control of the NSIC and/or file(s) its third-party administrator which NSIC intends to rely upon in the defense of the action; - copies of all correspcadence with proof of sent or on behalf of the along mailing by NSIC and/or its third-party administrator to Scooby's seeking to secure the cooperation of Scooby's in the defense of the underlying personal injury; and - copies of all correspcadêñce with proof of sent or on behalf of the along mailing by NSIC and/or its third-party administrator to Scooby's disclaiming coverage due, at least in part, to the failure or refusal by the said insured to cooperate in the defense 5 of 25 FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 of the underlying personal injury litigation. 10. Defendant's response dated September 11, 2019 (Exhibit 1, pages 00008 to 00041) to plaintiff's June 3, 2019 document demand contains only the foilewing items: - the insurance Declarations Page (Exhibit 00010 - policy 1, pages 0008, 00011); - notice of incident an email from Rotondo the including (Exhibit 1, pages 00012 to 00014); - without proof of on letterhead of RCA addressed to Regina correspondence, mailing, Rotondo dated January 15, 2013 (Exhibit 1, pages 00015 to 00020), Decêmber 11, 2013 (Exhibit 1, pages 00027 to 00029) and March 20, 2014 (Exhibit 1, pages 00030 to 00031); - correspondence on letterhead of Lewis Brisbois dated December 2012 (Exhibit 19, 1, pages 00021to 00024), March 20, 2013 (Exhibit 1, pages 00025 to 00026) and April 2, 2014 (Exhibit 1, pages 00032 to 00035); and - without proof of on letterhead of State Auto dated correspondêñce, mailing, January 6, 2015 (Exhibit 1, pages 00036 to 00039). Defendant's response did not include any of the following items: - the insurance app!ication for insurance or endorsements to the underlying policy, policy; - emails sent to Scooby's (though NSIC had an email address for Scooby's principal (Exhibit 1, page 00013)); - emails between NSIC and its TPA; - correspondence via letter or email between NSIC and its TPA; 6 of 25 FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 - documents other than those described above attempts its evidencing by NSIC, attorneys, agents, servants and/or employees to communicate with and/or contact Sccaby's in connection with the underlying personal injury action; - documents other than those described above attempts its evidencing by NSIC, attorneys, agents, servants and/or employees to obtain Scooby's cooperation in the defense of the underlying personal injury action; - and of telephone conversations in which the its note(s) recording(s) any NSIC, attorneys, agents, servants and/or smpicyees attempted to obtain Scooby's cooperation in the defense of the underlying personal injury litigation; - claims in the possession and/or control of NSIC and/or its file(s) third-party administrator relating to the defense of the underlying personal injury litigation; - other than those described in the possession and/or control of documents, above, NSIC and/or its third-party administrator which NSIC intends to rely upon in the defense of this action; - investigative in the possession and/or control of the NSIC and/or its third-party file(s) administrator which NSIC intends to rely upon in the defense of this action; - proof of of correspondence sent NSIC and/or its mailing any by third-party administrator to Scooby's seeking to secure the cooperation of Scooby's in the defense of the underlying personal injury; or - proof of of correspondence sent or on behalf of the NSIC and/or its mailing any by third-party administrator to Scooby's disclaiming coverage. 11. Plaintiff served a response to defendant's document demand on April 13, 2020 7 of 25 FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 (Exhibit 00042 - 00131). Radenberg's deposition was defense counsel. The 1, pages waived by deposition of defendant's witness, Margaret Erife (hereinafter "Erife") was conducted on August 6, 2020 (Exhibit 3). Synopsis of Defendant's Relevant Deposition Testimony 12. Erife worked as a senior claim's examiner for State Auto Insurance Company (hereinafter "State Auto"), a property casualty insurance company, from September 2011 until March 2017 (Exhibit 3, page 7 -8). Her training included an associate degree in insurance and a in claims law (M. at page 15, lines 3 to page 16, line 2). As a senior claim's examinêr, Erife worked with defense counsel on claims that were in suit (g. @ page 8). NSIC fell under the umbrella of State Auto (jd. @ page 25, line to page 24, line 2). 13. RCA was the third-party administrator ("TPA") handling the Radenberg claim for NSIC before State Auto took over that role (I_d. at page 19, line 19 to page 20, line 19; page 22, line 21 to page 25, line 2; Exhibit 1, page 10), presumably sometime between April 2, 2014 (Exhibit 1, page 00032) and January 6, 2015 (Ld. page 00036). The TPA handles and adjusts the claim on behalf of the insurance carrier (Exhibit 3 page 20, lines 2 to 10). 14. Erife handled the Radenberg third party action while at State Auto. She has no independent memory of the claim and her review of the documents exchanged by defense counsel (Exhibit 1, pages 00008 to 00041) did not refresh her memary (Exhibit 3 page 13, line 1 to page 14, line 13). She could identify her signature on a January 6, 2015 correspcadence on State Auto letterhead (Exhibit - but recall if she 1, pages 00036 00039) could not generated the correspondence or if it was mailed (Exhibit 3, page 11, line 23 to page 13, line 11; page 14, line 6th 14 to page 15, line 5; page 58, line 23 to page 60, line 11). She identified the January 8 of 25 FILED: RICHMOND COUNTY CLERK 01/13/2021 01:54 PM INDEX NO. 150253/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/13/2021 letter" correspondence as a "disclaimer intended for the policyhclder but could not explain why the correspondence was not addressed to Scooby's (M. at page 16, line 3 to page 19, line 3). 6th Furthermore, that the January COrreSpOndence, if sent, would have been the only disclaimer letter mailed to the insured (g. at page 20, line 20 to page 22, line 2). 15. Erife responded to questions concerning the correspcadêñce on RCA letterhead included with defendant's discovery response (Exhibit 1, pages 00008 to 00041). She could not tell us the import of the correspondence on RCA letterhead of January 15, 2013 (M. at pages 00015 to 00017; Exhibit 3, page 28, lines 6 to 20) and has no personal kñcwledge of whether that letter was sent (Exhibit 3, page 26, line 2 to 16). It is not a disclaimer letter (M. @ page 26, line 2 to page 28, line 5). Correspondence on RCA letterhead dated December 11, 2013 and March 20, 2014 (Exhibit pages 00027 to pages 00030 - are also not disclaimer letters 1, 00029; 00031) (Exhibit 3, page 35, line 21 to page 36, line 9; page 36, line 10 to page 37, line 24). failures" 16. Erife could not identify any "systematic of Scooby's to cooperate in the defense of the lawsuit (Exhibit 3, page