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FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ZURICH AMERICAN INSURANCE COMPANY, Index No.: 652336/2018
Plaintiff, SUBPOENA DUCES TECUM
AND
-against-
AD TESTIFICANDUM
FIRST SPECIALTY INSURANCE CORPORATION,
WESTERN BEEF RETAIL, INC. and WESTERN
BEEF PROPERTIES, INC.
Defendants.
To: Robert E. Brown, P.C.
465 Belfield Avenue, Suite F
Staten Island, New York 10312
GREETINGS:
WE COMMAND YOU, all business being laid aside, that you appear at the law firm
28th
Coughlin Duffy, LLP, 88 Pine Street, Floor, New York, New York 10005 on October 4,
2018 at 10:00 in the morning, and at any recess or adjourn date or time, to testify at a deposition
in this action as a non-party concerning (a) the documents identified in Schedule A, and (b) all
oral communications relating to the documents identified in Schedule A.
WE FURTHER COMMAND YOU to produce true and accurate copies of the
28th
documents identified in Schedule A at the law firm Coughlin Duffy, LLP, 88 Pine Street,
Floor, New York, New York 10005 on September 24, 2018 at 10:00 in the morning.
The circumstances and/or reasons such disclosure is sought, is required, and is material
and necessary are:
In the above-entitled action, Plaintiff Zurich American Insurance Company seeks
a declaration that First Specialty Insurance Corporation ("First Specialty"), Western Beef Retail,
Inc. ("WB Retail") and Western Beef Properties, Inc. ("WB Properties") had a duty to defend
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and indemnify Serota Roosevelt LLC ("Serota") as an additional insured under the commercial
general
liability policy First Specialty issued to WB Retail and WB Properties and/or that First
Specialty, WB Retail and WB Properties are equitably estopped from abandoning their defense
and indemnity obligations to Serota for the lawsuit styled: Desmond Garrett v. Serota Roosevelt
LLC, et al., bearing Index No. 702978/2016 (the "Garrett Action"). Upon information and belief,
Serota, as Landlord, entered into a lease with Western Beef, as tenant, for the Demised Premises,
which is described within the Lease as that portion of the building located at 332 Nassau Road,
Roosevelt, New York 11575 (the "Lease"). Pursuant to the provisions of the Lease and Rider,
Western Beef had a contractual obligation to procure commercial general
liability insurance that
afforded additional insured coverage to Serota for the Underlying Action. Upon information and
belief, Broadspire, with First Specialty's and Western Beef's knowledge and consent, appointed
the law firm Robert E. Brown, P.C. (the "Brown Law Firm") as counsel for Serota and Western
Beef in the Underlying Action. Because Broadspire, First Specialty and Western Beef were in
full control of Serota's defense and indemnity, neither Zurich nor Serota received any updates
the status of the that until December 2017. On that date --
regarding Underlying Action, is, 5,
of -- Brown Law Firm Zurich
the first day trial the notified and Serota that it could no longer
represent Serota.
Failure to comply with this subpoena is punishable as contempt of Court and shall make
you liable to the person on whose behalf this subpoena was issued for a penalty not to exceed
fifty dollars and all damages sustained by reason of your failure to comply.
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Dated: New York, New York
August 16, 2018
COUGHLIN DUFFY L
By:
Gabriel E. Darwick, Esq.
Lindsey LaFond, Esq.
Wall Street Plaza
28th
88 Pine Street, FlOOr
New York, New York 10005
(212) 483-0105
Attorneys for Plaintiff
To: Anthony Genovesi, Esq.
Justin T. Kelton, Esq.
Abrams, Fensterman, Fensterman,
Eisman, Formato, Ferrara, Wolf & Carone, LLP
1 Metro Tech Center, Suite 1701
Brooklyn, New York 11201
(718) 215-5300
Attorneys for Defendants
Western Beef Retail, Inc. and Western Beef Properties, Inc.
Gregg D. Weinstock, Esq.
Bigorito, Barker, Patterson, Nichols & Porter, LLP
300 Garden City Plaza, Suite 308
Garden City, NY 11530
(516) 282-3355
Adam H. Fleischer, Esq.
Michael Passman, Esq.
BatesCarey LLP
191 N. Wacker, Suite 2400
Chicago, IL 60606
(312) 762-3100
Attorneys for Defendant
First Specialty
Insurance Corporation
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SCHEDULE A
GENERAL INSTRUCTIONS
1. In producing the documents designated below, you are requested to furnish all
documents known or available to you regardless of whether a document is currently in your
possession, custody or control, or that of your attorneys, employees, agents, investigators or
other representatives, or is otherwise available to you.
2. Produce all documents in a form that accurately reflects how they are maintained
by you in the normal course of business, including but not limited, to the following:
(a) that all associated file labels, file headings and file folders be produced
together with the responsive documents for each file and that each file be
identified as to its owner or custodian;
(b) that all pages now stapled or fastened together be produced stapled or fastened
together; and
(c) that all documents which cannot be legibly copied be produced in their
original form.
3. If for
any reason you are unable to produce in full
any document requested:
(a) produce each sucil document to the fullest extent possible;
(b) specify the reasons for your inability to produce the remainder; and
(c) state in detail whatever information, knowledge, or belief you have
concerning the whereabouts and substance of each document not produced in
full.
4. If any document requested was at one time in existence, but is no longer in
existence, please state for each document as to which that is the case:
(a) the type of document;
(b) the types of information contained therein;
(c) the date upon which it ceased to exist;
(d) the circumstances under which it ceased to exist;
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(e) the identity of all persons having knowledge of the circumstances under which
it ceased to exist; and
(f) the
identity
of all persons having knowledge or who had knowledge of the
contents thereof.
5. For each document requested which you are unable to produce and which was at
any time within your possession, custody or control, or to which you had access at any time,
in detail:
specify
(a) the nature of the document (e.g., letter, memorandum, etc.);
(b) the author of the document;
(c) all recipients of the document and any copy thereof;
(d) a summary of the information contained in the document;
(e) the date on which you lost, relinquished, or otherwise ceased to have
possession, custody, control of, or access to the document;
(f) identify
all persons having knowledge of the circumstances whereby you lost,
relinquished, or otherwise ceased to have possession, custody or control of, or
access to the document; and
(g) identify all persons who have or have had knowledge of the contents of the
document, in full or in part.
6. In the event you seek to withhold or do withhold any document, in whole or in
part, on the basis that it is not subject to discovery, produce a list of all such documents and, as to
each such document, state:
(a) the name of each author, writer, sender or initiator of each such document;
(b) the name of each recipient, addressee or
party
to whom such document was
sent or intended to be sent;
(c) the name of each and every person who received a copy of the document;
(d) the date of the document, or if no date appears on the document, the date the
document was prepared;
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(e) the title of the document, or if it had no title, then such other description of the
document and its subject matter as shall be sufficient to identify the document;
and
(f) the grounds claimed for withholding the document from discovery (e.g.,
attorney-client privilege, work product, or any other grounds) and the factual
basis of such a claim. If you intend to withhold information that is otherwise
discoverable under the Rules of Court by claiming that it is privileged or
subject to protection as trial preparation material, you shall make the claim
expressly and shall describe the nature of the document, communications, or
things not produced or discovered in a manner that, without revealing
information itself privileged or protected, will enable the other parties to
assess the applicability of the privilege or protection.
7. If you dispute the propriety of any of the general instructions, as being outside the
scope of discovery as permitted by the Rules of Court or are otherwise objectionable, then
consider such instructions as interrogatories and answer them accordingly.
8. These requests are continuing in nature, and require that you produce all
responsive documents and tangible objects whenever you obtain or become aware of them, even
if they are not in your possession or available to you on the date you first produced documents
pursuant to these requests.
"and" "or"
9. The terms and shall be construed either disjunctively or conjunctively
whenever appropriate in order to bring within the scope of this demand any documents which
might otherwise be considered beyond its scope.
10. The singular form of a word shall be interpreted as plural and the plural form of a
word shall be interpreted as singular whenever appropriate in order to bring within the scope of
this demand any documents which might otherwise be considered beyond its scope.
11. If in answering this demand you claim any ambiguity in interpreting either the
demand or a definition or instruction applicable thereto, such claim shall not be utilized by you
as a basis for refusing to respond, but there shall be set forth as part of the response the language
deemed to be ambiguous and the interpretation chosen or used in responding to the demand.
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"Any," "each" "all"
12. and shall be read to be all inclusive, and to require the
production of each and every document (as hereinafter defined) responsive to the particular
request for production in which such term appears.
DEFINITIONS
As used herein:
"Zurich"
1. means Zurich American Insurance Company.
Beef"
2. "Western means Western Beef Retail, Inc., Western Beef Properties, Inc.,
their predecessors in interest, successors in interest, divisions, subsidiaries, affiliates, present or
former directors, officers, executives, employees, agents, attorneys, representatives, or other
persons acting or purporting to act on their behalf.
Specialty"
3. "First means First Specialty Insurance Corporation, its predecessors in
interest, successors in interest, divisions, subsidiaries, affiliates, present or former directors,
officers, executives, employees, agents, attorneys, representatives, or other persons acting or
purporting to act on their behalf.
"Serota"
4. means Serota Roosevelt LLC, its predecessors in interest, successors in
interest, divisions, subsidiaries, affiliates, present or former directors, officers, executives,
employees, agents, attorneys, representatives, or other persons acting or purporting to act on their
behalf.
Firm"
5. "Brown Law means The Law Offices of Robert E. Brown, P.C., its
predecessors in interest, successors in interest, divisions, subsidiaries, affiliates, present or
former directors, officers, executives, employees, agents, attorneys, representatives, or other
persons acting or purporting to act on their behalf.
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"Broadspire"
6. means Broadspire US. its predecessors in interest, successors in
interest, divisions, subsidiaries, affiliates, present or former directors, officers, executives,
employees, agents, attorneys, representatives, or other persons acting or purporting to act on their
behalf.
"TPA"
7. means any third-party administrator assigned or retained to manage,
supervise, or oversee claims made under the First Specialty Policy.
Action"
8. The "Underlying means the lawsuit styled Desmond Garrett v. Serota
Roosevelt LLC, et al., Index No. 702978/2016, New York Supreme Court, Queens County.
Incident"
9. The "Underlying means Desmond Garrett's alleged trip and fall that
occurred on August 14, 2015 on or about the sidewalk in front of the property located at 322
Nassau Road, Roosevelt, New York.
Policy"
10. The "First Specialty means the commercial general liability policy
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FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ZURICH AMERICAN INSURANCE COMPANY, Index No.: 652336/2018 Plaintiff, SUBPOENA DUCES TECUM AND -against- AD TESTIFICANDUM FIRST SPECIALTY INSURANCE CORPORATION, WESTERN BEEF RETAIL, INC. and WESTERN BEEF PROPERTIES, INC. Defendants. To: Robert E. Brown, P.C. 465 Belfield Avenue, Suite F Staten Island, New York 10312 GREETINGS: WE COMMAND YOU, all business being laid aside, that you appear at the law firm 28th Coughlin Duffy, LLP, 88 Pine Street, Floor, New York, New York 10005 on October 4, 2018 at 10:00 in the morning, and at any recess or adjourn date or time, to testify at a deposition in this action as a non-party concerning (a) the documents identified in Schedule A, and (b) all oral communications relating to the documents identified in Schedule A. WE FURTHER COMMAND YOU to produce true and accurate copies of the 28th documents identified in Schedule A at the law firm Coughlin Duffy, LLP, 88 Pine Street, Floor, New York, New York 10005 on September 24, 2018 at 10:00 in the morning. The circumstances and/or reasons such disclosure is sought, is required, and is material and necessary are: In the above-entitled action, Plaintiff Zurich American Insurance Company seeks a declaration that First Specialty Insurance Corporation ("First Specialty"), Western Beef Retail, Inc. ("WB Retail") and Western Beef Properties, Inc. ("WB Properties") had a duty to defend 1501892 FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019 and indemnify Serota Roosevelt LLC ("Serota") as an additional insured under the commercial general liability policy First Specialty issued to WB Retail and WB Properties and/or that First Specialty, WB Retail and WB Properties are equitably estopped from abandoning their defense and indemnity obligations to Serota for the lawsuit styled: Desmond Garrett v. Serota Roosevelt LLC, et al., bearing Index No. 702978/2016 (the "Garrett Action"). Upon information and belief, Serota, as Landlord, entered into a lease with Western Beef, as tenant, for the Demised Premises, which is described within the Lease as that portion of the building located at 332 Nassau Road, Roosevelt, New York 11575 (the "Lease"). Pursuant to the provisions of the Lease and Rider, Western Beef had a contractual obligation to procure commercial general liability insurance that afforded additional insured coverage to Serota for the Underlying Action. Upon information and belief, Broadspire, with First Specialty's and Western Beef's knowledge and consent, appointed the law firm Robert E. Brown, P.C. (the "Brown Law Firm") as counsel for Serota and Western Beef in the Underlying Action. Because Broadspire, First Specialty and Western Beef were in full control of Serota's defense and indemnity, neither Zurich nor Serota received any updates the status of the that until December 2017. On that date -- regarding Underlying Action, is, 5, of -- Brown Law Firm Zurich the first day trial the notified and Serota that it could no longer represent Serota. Failure to comply with this subpoena is punishable as contempt of Court and shall make you liable to the person on whose behalf this subpoena was issued for a penalty not to exceed fifty dollars and all damages sustained by reason of your failure to comply. 1501892 2 FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019 Dated: New York, New York August 16, 2018 COUGHLIN DUFFY L By: Gabriel E. Darwick, Esq. Lindsey LaFond, Esq. Wall Street Plaza 28th 88 Pine Street, FlOOr New York, New York 10005 (212) 483-0105 Attorneys for Plaintiff To: Anthony Genovesi, Esq. Justin T. Kelton, Esq. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP 1 Metro Tech Center, Suite 1701 Brooklyn, New York 11201 (718) 215-5300 Attorneys for Defendants Western Beef Retail, Inc. and Western Beef Properties, Inc. Gregg D. Weinstock, Esq. Bigorito, Barker, Patterson, Nichols & Porter, LLP 300 Garden City Plaza, Suite 308 Garden City, NY 11530 (516) 282-3355 Adam H. Fleischer, Esq. Michael Passman, Esq. BatesCarey LLP 191 N. Wacker, Suite 2400 Chicago, IL 60606 (312) 762-3100 Attorneys for Defendant First Specialty Insurance Corporation 1501892 3 FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019 SCHEDULE A GENERAL INSTRUCTIONS 1. In producing the documents designated below, you are requested to furnish all documents known or available to you regardless of whether a document is currently in your possession, custody or control, or that of your attorneys, employees, agents, investigators or other representatives, or is otherwise available to you. 2. Produce all documents in a form that accurately reflects how they are maintained by you in the normal course of business, including but not limited, to the following: (a) that all associated file labels, file headings and file folders be produced together with the responsive documents for each file and that each file be identified as to its owner or custodian; (b) that all pages now stapled or fastened together be produced stapled or fastened together; and (c) that all documents which cannot be legibly copied be produced in their original form. 3. If for any reason you are unable to produce in full any document requested: (a) produce each sucil document to the fullest extent possible; (b) specify the reasons for your inability to produce the remainder; and (c) state in detail whatever information, knowledge, or belief you have concerning the whereabouts and substance of each document not produced in full. 4. If any document requested was at one time in existence, but is no longer in existence, please state for each document as to which that is the case: (a) the type of document; (b) the types of information contained therein; (c) the date upon which it ceased to exist; (d) the circumstances under which it ceased to exist; 1501892 4 FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019 (e) the identity of all persons having knowledge of the circumstances under which it ceased to exist; and (f) the identity of all persons having knowledge or who had knowledge of the contents thereof. 5. For each document requested which you are unable to produce and which was at any time within your possession, custody or control, or to which you had access at any time, in detail: specify (a) the nature of the document (e.g., letter, memorandum, etc.); (b) the author of the document; (c) all recipients of the document and any copy thereof; (d) a summary of the information contained in the document; (e) the date on which you lost, relinquished, or otherwise ceased to have possession, custody, control of, or access to the document; (f) identify all persons having knowledge of the circumstances whereby you lost, relinquished, or otherwise ceased to have possession, custody or control of, or access to the document; and (g) identify all persons who have or have had knowledge of the contents of the document, in full or in part. 6. In the event you seek to withhold or do withhold any document, in whole or in part, on the basis that it is not subject to discovery, produce a list of all such documents and, as to each such document, state: (a) the name of each author, writer, sender or initiator of each such document; (b) the name of each recipient, addressee or party to whom such document was sent or intended to be sent; (c) the name of each and every person who received a copy of the document; (d) the date of the document, or if no date appears on the document, the date the document was prepared; 1501892 5 FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019 (e) the title of the document, or if it had no title, then such other description of the document and its subject matter as shall be sufficient to identify the document; and (f) the grounds claimed for withholding the document from discovery (e.g., attorney-client privilege, work product, or any other grounds) and the factual basis of such a claim. If you intend to withhold information that is otherwise discoverable under the Rules of Court by claiming that it is privileged or subject to protection as trial preparation material, you shall make the claim expressly and shall describe the nature of the document, communications, or things not produced or discovered in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the applicability of the privilege or protection. 7. If you dispute the propriety of any of the general instructions, as being outside the scope of discovery as permitted by the Rules of Court or are otherwise objectionable, then consider such instructions as interrogatories and answer them accordingly. 8. These requests are continuing in nature, and require that you produce all responsive documents and tangible objects whenever you obtain or become aware of them, even if they are not in your possession or available to you on the date you first produced documents pursuant to these requests. "and" "or" 9. The terms and shall be construed either disjunctively or conjunctively whenever appropriate in order to bring within the scope of this demand any documents which might otherwise be considered beyond its scope. 10. The singular form of a word shall be interpreted as plural and the plural form of a word shall be interpreted as singular whenever appropriate in order to bring within the scope of this demand any documents which might otherwise be considered beyond its scope. 11. If in answering this demand you claim any ambiguity in interpreting either the demand or a definition or instruction applicable thereto, such claim shall not be utilized by you as a basis for refusing to respond, but there shall be set forth as part of the response the language deemed to be ambiguous and the interpretation chosen or used in responding to the demand. 1501892 6 FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019 "Any," "each" "all" 12. and shall be read to be all inclusive, and to require the production of each and every document (as hereinafter defined) responsive to the particular request for production in which such term appears. DEFINITIONS As used herein: "Zurich" 1. means Zurich American Insurance Company. Beef" 2. "Western means Western Beef Retail, Inc., Western Beef Properties, Inc., their predecessors in interest, successors in interest, divisions, subsidiaries, affiliates, present or former directors, officers, executives, employees, agents, attorneys, representatives, or other persons acting or purporting to act on their behalf. Specialty" 3. "First means First Specialty Insurance Corporation, its predecessors in interest, successors in interest, divisions, subsidiaries, affiliates, present or former directors, officers, executives, employees, agents, attorneys, representatives, or other persons acting or purporting to act on their behalf. "Serota" 4. means Serota Roosevelt LLC, its predecessors in interest, successors in interest, divisions, subsidiaries, affiliates, present or former directors, officers, executives, employees, agents, attorneys, representatives, or other persons acting or purporting to act on their behalf. Firm" 5. "Brown Law means The Law Offices of Robert E. Brown, P.C., its predecessors in interest, successors in interest, divisions, subsidiaries, affiliates, present or former directors, officers, executives, employees, agents, attorneys, representatives, or other persons acting or purporting to act on their behalf. 1501892 7 FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/09/2019 "Broadspire" 6. means Broadspire US. its predecessors in interest, successors in interest, divisions, subsidiaries, affiliates, present or former directors, officers, executives, employees, agents, attorneys, representatives, or other persons acting or purporting to act on their behalf. "TPA" 7. means any third-party administrator assigned or retained to manage, supervise, or oversee claims made under the First Specialty Policy. Action" 8. The "Underlying means the lawsuit styled Desmond Garrett v. Serota Roosevelt LLC, et al., Index No. 702978/2016, New York Supreme Court, Queens County. Incident" 9. The "Underlying means Desmond Garrett's alleged trip and fall that occurred on August 14, 2015 on or about the sidewalk in front of the property located at 322 Nassau Road, Roosevelt, New York. Policy" 10. The "First Specialty means the commercial general liability policy