Preview
FILED: SUFFOLK COUNTY CLERK 02/28/2023 03:27 PM INDEX NO. 608053/2021
NYSCEF DOC. NO.
STEVEN D. MANNING 58 J. LABRUM *
JONATHAN RECEIVED NYSCEF:
S. CHRISTIAN ANDERSON MARCY G02/28/2023
RIBIN-SANCHEZ
DENNIS B. KASS KAREN LIAO JOSEPH GORDON LISA IVERSEN
ANTHONY J. ELLROD JONATHON D. SAYRE COURTNEY NAKATANI MARISA ZARATE
EUGENE P. RAMIREZ MATTHEW E. KEARL SEAN DOWSING DANIEL KNIERIM
FREDRIC W. TRESTER RODRIGO J. BOZOGHLIAN KIRK EDSON HANNAH ELLENHORN
LAWRENCE D. ESTEN GRETHCHEN COLLIN MARK SENIOR WENDY SKILLMAN
MILDRED K. O'LINN * LYNN CARPENTER * MIRIAM ORTIZ ERIC HITCHCOCK*
ALFRED M. DE LA CRUZ CHRISTOPHER KANJO JENNIFER GATEB JONATHAN AVRAHAM
ERWIN A. NEPOMUCENO * ROBERT E. MURPHY * KRISTINE RIZZO ANGELA ZUGMAN
BRIAN T. MOSS * JASON J. DOSHI JOANA COLOMA RYANNE HANKLA
JEFFREY M. LENKOV EMILY EDWARDS RICHARD MOJICA LACEY SIPSEY
MARGUERITE L. JONAK * DAVID R.RUIZ LOAN DAO SABIRA SHERMAN
MICHAEL L. SMITH SCOTT A. ALLES † CHANDRA CARR BRYANNA MCGUIRK
LOUIS W. PAPPAS DANIEL SULLIVAN ROGER BRACKEN JONATHAN KOEHLE
EUGENE J. EGAN ANDREA KORNBLAU MICHELLE MARTIN TANYA PROUTY
CLIFFORD A. CLANCEY NATALYA VASYUK DEANN RIVARD DORIS Y. YOUMARA
R. ADAM ELLISON MARK WILSON HENRY ENENMOH NIDA MAQSOOD
SCOTT WM. DAVENPORT CRAIG SMITH DEREK G. BREDEFELD AVA TOWHIDIAN
JASON J. MOLNAR * KELSEY NICOLAISEN 100 WALL STREET OLESYA MIKHAYLOVA RONALD ROUNDY
DAVID V. ROTH KIRSTEN BROWN ROYA FOHRER ADAM AFSAR
JENNIFER L. SUPMAN TIFFANY HENDERSON SUITE 700 SOPHIE O. LAFRANCHI BRANDON AFLAK
JEANETTE L. DIXON JONATHAN HACK* KAYLEIGH ANDERSEN ANNA KARTOSHKINA
DAVID R. REEDER* EMILY ELLSE NEW YORK, NEW YORK 10005 POLINA POLONSKY KRISTINA ROSS
ANTHONY CANNIZZO ERIC WAHRBURG TELEPHONE: (212) 858-7769 LINNA LOANGKOTE CHARLES STRUBLE
DANIEL B. HERBERT * JOSHUA FERGUSON JAMIE COOPERMAN JODI LI
MARK A. HAGOPIAN SALLY FREEMAN* FACSIMILE: (212) 858-7543 MORGAN TRENARY JOSEPH ESCAREZ
DONALD R. DAY * CHRISTINE LA VORGNA JAMES A. HARRIS NICOLE JONES
JOHN M. HOCHHAUSLER LIZETTE ALVARADO WEB SITE: WWW.MANNINGLLP.COM JARED M. KAYE BRADLEY ANDERSON
CHRISTOPHER DATOMI ELLEN BURACH-ZION MICHAEL BRAVE JASON CHOU
ROLAND TONG EVGENIA JANSEN ANDREI DUMITRESCU
STEVEN W. DELATEUR LILIT SHAMIRYAN SARAH RAOOF OF COUNSEL
WILLIAM KELSBERG ANTOINETTE MARINO* November 22, 2022 GABRIELLA PEDONE JOHN D. MARINO*
KATHLEEN A. HUNT * GLENN JOHNSTON CHRISTOPHER BAUER ARI MARKOW
STEVEN J. RENICK ELISE DVOROCHKIN ERNEST MARTZ TRISHA NEWMAN
D. HIEP TRUONG RICHARD MCKIE TIFFANY SOHRABIAN MICHAEL A. WEISMANTEL
JANET D. JOHN * NICOLE DYER STEPHANIE NATHANIEL CAROL ROHR
SHARON S. JEFFREY DANE CUMMARO JESSICA BECERRA KRISTOFER BUNDY
RICHARD G. GARCIA SHANE ABERGEL DAVID ALPERN CHARLES MOLLIS
KENNETH S. KAWABATA GARROS CHAN NATALIE PORTONE * Admitted in Multiple Jurisdiction
† Admitted to Practice Law in Arizona
STEVEN AMUNDSON* CHRISTINA TAPIA ELISSA BALLEW only
LALO GARCIA ALICIA D. MASSIDAS* ANDREW RAZMA
VIA CERTIFIED MAIL RETURN RECEIPT
Andrew Ciccaroni, Esq.
Office of Thomas Tona, P.C.
152 Islip Avenue, Suite 18
Islip, New York 11751
Email: AJC@Tonalaw.com
Re: Home Line Properties, et al. v. Kingstone Insurance Company
Index No. : 608053/2021
Claim No. : DFP00493NY
Policy No. : DF3014874
MKER File No. : 8294-70000
Date of Loss : 11/28/2020
Dear Mr. Ciccaroni,
As you are aware, our office represents Kingstone Insurance Company ("Kingstone") in
the above matter. This office is in receipt of your correspondence dated November 22, 2022 in
relation to the Examination Under Oath (hereinafter "EUO") of your clients, Rafael and Rachel
Avgi. This correspondence seeks to clarify the numerous misconception assert in your November
22, 2022 correspondence.
As an initial matter, while your office has stated on numerous occasions that prior counsel,
Mr. McCauley, canceled the scheduled EUO, to date your office has not provided any written
correspondence issued by Mr. McCauley to substantiate this assertion. Again, we direct you to
your March 2, 2021 correspondence wherein your office clearly set forth unreasonable conditions
DALLAS LOS ANGELES ORANGE COUNTY PHOENIX SAN DIEGO SAN FRANCISCO
901 Main Street, Suite 6530 801 S. Figueroa St, 15th Floor 695 Town Center Dr., Suite 400 3636 North Central Avenue, 11th Floor 225 Broadway, Suite 1200 One California Street, Suite 900
Dallas, TX 75202 Los Angeles, CA 90017-3012 Costa Mesa, CA 92626 Phoenix, AZ 85012 San Diego, CA 92101 San Francisco, CA 94111
Telephone: (214) 953-7669 Telephone: (213) 624-6900 Telephone: (949) 440-6690 Telephone: (602) 313-5469 Telephone: (619) 515-0269 Telephone: (415) 217-6990
FILED: SUFFOLK COUNTY CLERK 02/28/2023 03:27 PM INDEX NO. 608053/2021
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/28/2023
Andrew Ciccaroni, Esq.
Re: Homeline Properties, et al. v. Kingstone Insurance Company
November 22, 2022
Page 2
for your client to appear for their scheduled EUO and your October 7, 2022 correspondence where
you again wrongfully asserted that a "certified copy of the applicable policy" is required as a
condition precedent for your client to appear at an EUO. As such, we kindly request that you
provide written documentation issued by Mr. McCauley to validate your contentions that your
client's failure to appear for their EUO as scheduled on March 11, 2021 at 10:00 am was cancelled
by Mr. McCauley and not solely due to your clients capricious failure to appear as obligated by
the Policy.
Second, it appears from the various commentaries made within your November 22, 2022
correspondence that you are guileless in relation to the fact that an EUO is not a deposition and
hence does not align with the requirements you so kindly invited me to read in the New York State
Standards of Civility for the Legal Profession wherein it states: "V. The timing and manner of
service of papers should not be designed to cause disadvantage to the party receiving the papers."
Contrary to your understanding, an EUO is an investigative tool utilized by an insurance company.
It is the insurance company's right to request and the insured's obligation, as often as the insurance
company may require the insured to submit to an EUO, while not in the presence of another
insured. The insured is equally required to produce for examination all writings, books of account,
bills, invoices and other vouches, or certified copies thereof if the originals are lost.
While you continuously demonstrate a conflated understanding, a deposition and EUO
serve vastly different purposes. First, the obligation to sit for an EUO is contractual rather than
arising out of the Rules of Civil Procedure. Second, you as the insured's counsel play a different
role during exams under oath than during depositions. Specifically, EUOs are taken to augment
the insurer's investigation of the claim while a deposition is not part of the claim investigation
process. Hence, an insured has a duty to volunteer information related to the claim during an EUO
in accordance with the Policy which is not an obligation that exists in a deposition. Further, the
filing of a lawsuit is not meant to be safe haven for an insured to comply with its post loss
obligation.
Based upon the above, it is your client's obligation to keep accurate books, records and
accounts and to produce for examination by Home Line or a duly authorized representative of
Home Line all of the books and records, inventories and accounts as demanded by Kingstone. As
such, to comply with document the above, we hereby demand that your client provide all items
demanded prior to the scheduled EUO date. In the event your client requires additional time to
provide all items demanded, it is your client's obligation to request additional time and to
subsequently request the rescheduling of the EUO date.
Nonetheless, to save time we will kindly reschedule your client's EUO date to December
13, 2022 beginning at 10:00 am. Enclosed are courtesy copies of the EUO demands that will be
equally served by US Certified Mail, Return Receipt.
Finally, the due to the numerous/excessive demands serviced upon this office, the citing of
CPLR 3043 was a scrivener's error and the verification of the Bill of Particulars was clearly an
oversight both of which we have corrected and re-served as an Amended Verified Response To
FILED: SUFFOLK COUNTY CLERK 02/28/2023 03:27 PM INDEX NO. 608053/2021
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/28/2023
Andrew Ciccaroni, Esq.
Re: Homeline Properties, et al. v. Kingstone Insurance Company
November 22, 2022
Page 3
Demand For Bill of Particulars in accordance with CPLR 3042(b). Please note contrary to the
representations made in your November 22, 2022 correspondence, notwithstanding and without
waiving our objections, a full response to each demand was provided where applicable. We
equally include a courtesy copy of the Amended Verified Response To Demand For Bill of
Particulars.
Very truly yours,
MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
Jeanette L. Dixon, Esq.
JLD/axh
INDEX
FILED: SUFFOLK COUNTY CLERK 02/28/2023 03:27 PMNO. 608053/2021
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/28/2023
A. Signature
@ Complete items 1, 2, and 3.
X 0 Agent
@ Print your name and address on the reverse
OI Addressee
so that we can return the card to you.
B. Received by (Printed Name) C. Date of Delivery -
@ Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to: D. Is delivery address different from item 1? [1 Yes
If YES, enter delivery address below: No
THE LAW OFFICE OF THOMAS TONA, P.C.
152 Islip Avenue, Suite 18
Islip, New York 11751
VORA 0A OA
3. Service Type 0 Priority Mail Express®
O Adult Signature 0 Registered Mail™
Ci Adult Signature Restricted Delivery O Registered Mail Restricted
O Certified Mail® Delivery
9590 9402 6686 1060 4077 58 OD Certified Mail Restricted Delivery D Signature Confirmation™
D Signature Confirmation
O Collect on Delivery
O Collect on Delivery Restricted Delivery Restricted Delivery
2. Article Number (Transfer from service label)
™*-Sured Mail
7021 0350 O001 7234 7174 jured Mail Restricted Delivery
'er $500)
: PS Form 3811, July 2020 PSN 7530-02-000-9053 Domestic Return Receipt :
Preview
FILED: SUFFOLK COUNTY CLERK 02/28/2023 03:27 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. STEVEN D. MANNING 58 J. LABRUM * JONATHAN RECEIVED NYSCEF: S. CHRISTIAN ANDERSON MARCY G02/28/2023 RIBIN-SANCHEZ DENNIS B. KASS KAREN LIAO JOSEPH GORDON LISA IVERSEN ANTHONY J. ELLROD JONATHON D. SAYRE COURTNEY NAKATANI MARISA ZARATE EUGENE P. RAMIREZ MATTHEW E. KEARL SEAN DOWSING DANIEL KNIERIM FREDRIC W. TRESTER RODRIGO J. BOZOGHLIAN KIRK EDSON HANNAH ELLENHORN LAWRENCE D. ESTEN GRETHCHEN COLLIN MARK SENIOR WENDY SKILLMAN MILDRED K. O'LINN * LYNN CARPENTER * MIRIAM ORTIZ ERIC HITCHCOCK* ALFRED M. DE LA CRUZ CHRISTOPHER KANJO JENNIFER GATEB JONATHAN AVRAHAM ERWIN A. NEPOMUCENO * ROBERT E. MURPHY * KRISTINE RIZZO ANGELA ZUGMAN BRIAN T. MOSS * JASON J. DOSHI JOANA COLOMA RYANNE HANKLA JEFFREY M. LENKOV EMILY EDWARDS RICHARD MOJICA LACEY SIPSEY MARGUERITE L. JONAK * DAVID R.RUIZ LOAN DAO SABIRA SHERMAN MICHAEL L. SMITH SCOTT A. ALLES † CHANDRA CARR BRYANNA MCGUIRK LOUIS W. PAPPAS DANIEL SULLIVAN ROGER BRACKEN JONATHAN KOEHLE EUGENE J. EGAN ANDREA KORNBLAU MICHELLE MARTIN TANYA PROUTY CLIFFORD A. CLANCEY NATALYA VASYUK DEANN RIVARD DORIS Y. YOUMARA R. ADAM ELLISON MARK WILSON HENRY ENENMOH NIDA MAQSOOD SCOTT WM. DAVENPORT CRAIG SMITH DEREK G. BREDEFELD AVA TOWHIDIAN JASON J. MOLNAR * KELSEY NICOLAISEN 100 WALL STREET OLESYA MIKHAYLOVA RONALD ROUNDY DAVID V. ROTH KIRSTEN BROWN ROYA FOHRER ADAM AFSAR JENNIFER L. SUPMAN TIFFANY HENDERSON SUITE 700 SOPHIE O. LAFRANCHI BRANDON AFLAK JEANETTE L. DIXON JONATHAN HACK* KAYLEIGH ANDERSEN ANNA KARTOSHKINA DAVID R. REEDER* EMILY ELLSE NEW YORK, NEW YORK 10005 POLINA POLONSKY KRISTINA ROSS ANTHONY CANNIZZO ERIC WAHRBURG TELEPHONE: (212) 858-7769 LINNA LOANGKOTE CHARLES STRUBLE DANIEL B. HERBERT * JOSHUA FERGUSON JAMIE COOPERMAN JODI LI MARK A. HAGOPIAN SALLY FREEMAN* FACSIMILE: (212) 858-7543 MORGAN TRENARY JOSEPH ESCAREZ DONALD R. DAY * CHRISTINE LA VORGNA JAMES A. HARRIS NICOLE JONES JOHN M. HOCHHAUSLER LIZETTE ALVARADO WEB SITE: WWW.MANNINGLLP.COM JARED M. KAYE BRADLEY ANDERSON CHRISTOPHER DATOMI ELLEN BURACH-ZION MICHAEL BRAVE JASON CHOU ROLAND TONG EVGENIA JANSEN ANDREI DUMITRESCU STEVEN W. DELATEUR LILIT SHAMIRYAN SARAH RAOOF OF COUNSEL WILLIAM KELSBERG ANTOINETTE MARINO* November 22, 2022 GABRIELLA PEDONE JOHN D. MARINO* KATHLEEN A. HUNT * GLENN JOHNSTON CHRISTOPHER BAUER ARI MARKOW STEVEN J. RENICK ELISE DVOROCHKIN ERNEST MARTZ TRISHA NEWMAN D. HIEP TRUONG RICHARD MCKIE TIFFANY SOHRABIAN MICHAEL A. WEISMANTEL JANET D. JOHN * NICOLE DYER STEPHANIE NATHANIEL CAROL ROHR SHARON S. JEFFREY DANE CUMMARO JESSICA BECERRA KRISTOFER BUNDY RICHARD G. GARCIA SHANE ABERGEL DAVID ALPERN CHARLES MOLLIS KENNETH S. KAWABATA GARROS CHAN NATALIE PORTONE * Admitted in Multiple Jurisdiction † Admitted to Practice Law in Arizona STEVEN AMUNDSON* CHRISTINA TAPIA ELISSA BALLEW only LALO GARCIA ALICIA D. MASSIDAS* ANDREW RAZMA VIA CERTIFIED MAIL RETURN RECEIPT Andrew Ciccaroni, Esq. Office of Thomas Tona, P.C. 152 Islip Avenue, Suite 18 Islip, New York 11751 Email: AJC@Tonalaw.com Re: Home Line Properties, et al. v. Kingstone Insurance Company Index No. : 608053/2021 Claim No. : DFP00493NY Policy No. : DF3014874 MKER File No. : 8294-70000 Date of Loss : 11/28/2020 Dear Mr. Ciccaroni, As you are aware, our office represents Kingstone Insurance Company ("Kingstone") in the above matter. This office is in receipt of your correspondence dated November 22, 2022 in relation to the Examination Under Oath (hereinafter "EUO") of your clients, Rafael and Rachel Avgi. This correspondence seeks to clarify the numerous misconception assert in your November 22, 2022 correspondence. As an initial matter, while your office has stated on numerous occasions that prior counsel, Mr. McCauley, canceled the scheduled EUO, to date your office has not provided any written correspondence issued by Mr. McCauley to substantiate this assertion. Again, we direct you to your March 2, 2021 correspondence wherein your office clearly set forth unreasonable conditions DALLAS LOS ANGELES ORANGE COUNTY PHOENIX SAN DIEGO SAN FRANCISCO 901 Main Street, Suite 6530 801 S. Figueroa St, 15th Floor 695 Town Center Dr., Suite 400 3636 North Central Avenue, 11th Floor 225 Broadway, Suite 1200 One California Street, Suite 900 Dallas, TX 75202 Los Angeles, CA 90017-3012 Costa Mesa, CA 92626 Phoenix, AZ 85012 San Diego, CA 92101 San Francisco, CA 94111 Telephone: (214) 953-7669 Telephone: (213) 624-6900 Telephone: (949) 440-6690 Telephone: (602) 313-5469 Telephone: (619) 515-0269 Telephone: (415) 217-6990 FILED: SUFFOLK COUNTY CLERK 02/28/2023 03:27 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/28/2023 Andrew Ciccaroni, Esq. Re: Homeline Properties, et al. v. Kingstone Insurance Company November 22, 2022 Page 2 for your client to appear for their scheduled EUO and your October 7, 2022 correspondence where you again wrongfully asserted that a "certified copy of the applicable policy" is required as a condition precedent for your client to appear at an EUO. As such, we kindly request that you provide written documentation issued by Mr. McCauley to validate your contentions that your client's failure to appear for their EUO as scheduled on March 11, 2021 at 10:00 am was cancelled by Mr. McCauley and not solely due to your clients capricious failure to appear as obligated by the Policy. Second, it appears from the various commentaries made within your November 22, 2022 correspondence that you are guileless in relation to the fact that an EUO is not a deposition and hence does not align with the requirements you so kindly invited me to read in the New York State Standards of Civility for the Legal Profession wherein it states: "V. The timing and manner of service of papers should not be designed to cause disadvantage to the party receiving the papers." Contrary to your understanding, an EUO is an investigative tool utilized by an insurance company. It is the insurance company's right to request and the insured's obligation, as often as the insurance company may require the insured to submit to an EUO, while not in the presence of another insured. The insured is equally required to produce for examination all writings, books of account, bills, invoices and other vouches, or certified copies thereof if the originals are lost. While you continuously demonstrate a conflated understanding, a deposition and EUO serve vastly different purposes. First, the obligation to sit for an EUO is contractual rather than arising out of the Rules of Civil Procedure. Second, you as the insured's counsel play a different role during exams under oath than during depositions. Specifically, EUOs are taken to augment the insurer's investigation of the claim while a deposition is not part of the claim investigation process. Hence, an insured has a duty to volunteer information related to the claim during an EUO in accordance with the Policy which is not an obligation that exists in a deposition. Further, the filing of a lawsuit is not meant to be safe haven for an insured to comply with its post loss obligation. Based upon the above, it is your client's obligation to keep accurate books, records and accounts and to produce for examination by Home Line or a duly authorized representative of Home Line all of the books and records, inventories and accounts as demanded by Kingstone. As such, to comply with document the above, we hereby demand that your client provide all items demanded prior to the scheduled EUO date. In the event your client requires additional time to provide all items demanded, it is your client's obligation to request additional time and to subsequently request the rescheduling of the EUO date. Nonetheless, to save time we will kindly reschedule your client's EUO date to December 13, 2022 beginning at 10:00 am. Enclosed are courtesy copies of the EUO demands that will be equally served by US Certified Mail, Return Receipt. Finally, the due to the numerous/excessive demands serviced upon this office, the citing of CPLR 3043 was a scrivener's error and the verification of the Bill of Particulars was clearly an oversight both of which we have corrected and re-served as an Amended Verified Response To FILED: SUFFOLK COUNTY CLERK 02/28/2023 03:27 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/28/2023 Andrew Ciccaroni, Esq. Re: Homeline Properties, et al. v. Kingstone Insurance Company November 22, 2022 Page 3 Demand For Bill of Particulars in accordance with CPLR 3042(b). Please note contrary to the representations made in your November 22, 2022 correspondence, notwithstanding and without waiving our objections, a full response to each demand was provided where applicable. We equally include a courtesy copy of the Amended Verified Response To Demand For Bill of Particulars. Very truly yours, MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP Jeanette L. Dixon, Esq. JLD/axh INDEX FILED: SUFFOLK COUNTY CLERK 02/28/2023 03:27 PMNO. 608053/2021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/28/2023 A. Signature @ Complete items 1, 2, and 3. X 0 Agent @ Print your name and address on the reverse OI Addressee so that we can return the card to you. B. Received by (Printed Name) C. Date of Delivery - @ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: D. Is delivery address different from item 1? [1 Yes If YES, enter delivery address below: No THE LAW OFFICE OF THOMAS TONA, P.C. 152 Islip Avenue, Suite 18 Islip, New York 11751 VORA 0A OA 3. Service Type 0 Priority Mail Express® O Adult Signature 0 Registered Mail™ Ci Adult Signature Restricted Delivery O Registered Mail Restricted O Certified Mail® Delivery 9590 9402 6686 1060 4077 58 OD Certified Mail Restricted Delivery D Signature Confirmation™ D Signature Confirmation O Collect on Delivery O Collect on Delivery Restricted Delivery Restricted Delivery 2. Article Number (Transfer from service label) ™*-Sured Mail 7021 0350 O001 7234 7174 jured Mail Restricted Delivery 'er $500) : PS Form 3811, July 2020 PSN 7530-02-000-9053 Domestic Return Receipt :