Preview
FILED: SUFFOLK COUNTY CLERK 02/28/2023
09/23/2021 03:16
05:09 PM INDEX NO. 608053/2021
NYSCEF DOC. NO. 51
29 RECEIVED NYSCEF: 02/28/2023
09/23/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
________. ----- X
HOMELINE PROPERTIES OF ISLIP TERRACE, LLC.,
RAFAEL AVGI and RACHEL AVGI Index No.: 608053/2021
Plaintiffs, VERIFIED ANSWER
-against-
KINGSTONE INSURANCE COMPANY, K. BELL &
ASSOCIATES, INC. and KEN BELL, INDIVIDUALLY
Defendants.
X
Defendant, KINGSTONE INSURANCE COMPANY (hereinafter "KINGSTONE"), by
and through its attorneys, McCauley Law Firm, PLLC, hereby answers the Verified Complaint,
dated April 30, 2021, of the plaintiffs, HOMELINE PROPERTIES OF ISLIP TERRACE, LLC.,
RAFAEL AVGI and RACHEL AVGI, upon information and belief, as follows:
1. Denies knowledge or information sufficient to form a belief as to the truth of the
"1"
allegations set forth in Paragraph of the Complaint.
2. Denies knowledge or information sufficient to form a belief as to the truth of the
"2"
allegations set forth in Paragraph of the Complaint.
3. Denies knowledge or information sufficient to form a belief as to the truth of the
"3"
allegations set forth in Paragraph of the Complaint.
4. Denies knowledge or information sufficient to form a belief as to the truth of the
"4"
allegations set forth in Paragraph of the Complaint.
"5"
5. Denies the truth of the allegations set forth in Paragraph of the Complaint,
except admits that Kingstone was, and still is, a stock insurance company organized under the laws
of the State of New York, with offices for the transaction of business located within the State of
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New York and is duly licensed and authorized to issue policies of insurance, including dwelling
fire insurance policies.
"6"
6. Admits the truth of the allegations set forth in Paragraph of the Complaint.
"7"
7. Denies the truth of the allegations set forth in Paragraph of the Complaint,
except admits that Kingstone was, and still is, a stock insurance conipany organized under the laws
of the State of New York, with offices for the transaction of business located within the State of
New York and is duly licensed and authorized to issue policies of insurance, including dwelling
fire insurance policies.
8. Denies knowledge or information sufficient to form a belief as to the truth of the
"8"
allegations set forth in Paragraph of the Complaint.
9. Denies knowledge or information sufficient to form a belief as to the truth of the
"9"
allegations set forth in Paragraph of the Complaint.
10. Denies knowledge or information sufficient to form a belief as to the truth of the
"10"
allegations set forth in Paragraph of the Complaint.
"11"
11. Denies the truth of the allegations set forth in Paragraph of the Coniplaint,
except admits that Kingstone issued to the plaintiffs, Rachel and Rafael Avgi and Home Line
Properties of Islip Terrace, LL, a dwelling fire renewal policy of insurance, policy number
DF3014874-08, with effective dates of December 27, 2019 to December 27, 2020, which provides
insurance coverage for 39-41 Carleton Avenue, Islip Terrace, New York ("the Kingstone policy").
"12"
12. Denies the truth of the allegations set forth in Paragraph of the Complaint,
except admits that the Kingstone policy provides insurance coverage for 39-41 Carleton Avenue,
Islip Terrace, New York (the "insured premises") with the coverages and policy limits set forth in
the Kingstone policy insurance declarations.
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13. Denies knowledge or information sufficient to form a belief as to the truth of the
"13"
allegations set forth in Paragraph of the Complaint.
14. Denies knowledge or information sufficient to form a belief as to the truth of the
"14"
allegations set forth in Paragraph of the Complaint.
15. Denies the truth of the allegations set forth in Paragraph "15 of the Complaint,
except admits that Kingstone issued to the plaintiffs, Rachel and Rafael Avgi and Home Line
Properties of Islip Terrace, LL, a dwelling fire renewal policy of insurance, policy number
DF3014874-08, with effective dates of December 27, 2019 to December 27, 2020, which provides
insurance coverage for 39-41 Carleton Avenue, Islip Terrace, New York ("the Kingstone policy").
16. Denies the truth of the allegations set forth in Paragraph "16 of the Complaint,
except admits that Kingstone issued to the plaintiffs, Rachel and Rafael Avgi and Home Line
Properties of Islip Terrace, LL, a dwelling fire renewal policy of insurance, policy number
DF3014874-08, with effective dates of December 27, 2019 to December 27, 2020, which provides
insurance coverage for 39-41 Carleton Avenue, Islip Terrace, New York ("the Kingstone policy").
AS FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
17. Answering defendant repeats, reiterates and reasserts each and every response
"1"
contained in paragraphs through "16", inclusive, as if fully set forth herein.
18. Denies knowledge or information sufficient to form a belief as to the truth of the
"18"
allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial
court.
19. Denies knowledge or information sufficient to form a belief as to the truth of the
"19"
allegations set forth in Paragraph of the Complaint.
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20. Denies the truth of the allegations set forth in Paragraph "15 of the Complaint,
except admits that Kingstone issued to the plaintiffs, Rachel and Rafael Avgi and Home Line
Properties of Islip Terrace, LL, a dwelling fire renewal policy of insurance, policy number
DF3014874-08, with effective dates of December 27, 2019 to December 27, 2020, which provides
coverage for 39-41 Carleton Avenue, Islip Terrace, New York ("the Kingstone policy").
"21"
21. Denies the truth of the allegations set forth in Paragraph ofthe Complaint and
refers all matters of law to the trial court.
"22"
22. Denies the truth of the allegations set forth in Paragraph of the Complaint.
"23"
23. Denies the truth of the allegations set forth in Paragraph of the Complaint.
"24"
24. Denies the truth of the allegations set forth in Paragraph of the Complaint.
"25"
25. Denies the truth of the allegations set forth in Paragraph of the Complaint.
"26"
26. Denies the truth of the allegations set forth in Paragraph of the Complaint
except admits that Kingtstone issued to the plainiffs Reservation of Rights letters dated December
17, 2020 and February 16, 2021, reseving its rights under the Kingstone policy pending completion
of its investigation of the subject loss.
"27"
27. Denies the truth of the allegations set forth in Paragraph of the Complaint
except admits that the McCauley Law Firm, PPLC on behalf of Kingstone issued a letter to the
plaintiffs demanding that they appear for an Examination Under Oath, pursuant to the terms and
conditions of the Kingstone policy, and in furtherance of Kingstone's investigation of the subject
loss.
"28"
28. Denies the truth of the allegations set forth in Paragraph of the Complaint and
refers all matters of law to the trial court.
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29. Denies knowledge or information sufficient to form a belief as to the truth of the
"29"
allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial
court.
30. Denies knowledge or information sufficient to form a belief as to the truth of the
"30"
allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial
court.
"31"
31. Denies the truth of the allegations set forth in Paragraph of the Complaint.
"32"
32. Denies the truth of the allegations set forth in Paragraph of the Complaint and
refers all matters of law to the trial court.
"33"
33. Denies the truth of the allegations set forth in Paragraph of the Complaint.
34. Denies knowledge or information sufficient to form a belief as to the truth of the
"34"
allegations set forth in Paragraph of the Coinplaint and refers all matters of law to the trial
court.
"35"
35. Denies the truth of the allegations set forth in Paragraph of the Complaint and
refers all matters of law to the trial court.
"36"
36. Denies the truth of the allegations set forth in Paragraph of the Complaint and
refers all matters of law to the trial court.
"37"
37. Denies the truth of the allegations set forth in Paragraph of the Complaint and
refers all matters of law to the trial court.
"38"
38. Denies the truth of the allegations set forth in Paragraph of the Complaint and
refers all matters of law to the trial court.
"39"
39. Denies the truth of the allegations set forth in Paragraph of the Complaint and
refers all matters of law to the trial court.
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"40"
40. Denies the truth of the allegations set forth in Paragraph of the Complaint and
refers all matters of law to the trial court.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFEN5E
The Complaint fails to set forth a cause of action as to the answering defendant upon which
relief can be granted.
SECOND AFFIRMATIVE DEFENSE
The plaintiffs have failed to perform all of the obligations and duties precedent to coverage
under the Kingstone policy.
THIRD AFFIRMATIVE DEFENSE
There is no coverage under the Kingstone policy for any of the alleged damages which
occurred 39-41 Carleton Ave., Islip Terrace, NY 11752 on November 28, 2020 based upon
material misrepresentation, concealment or fraud made by the plaintiffs in the procurement of the
Kingstone policy. The Kingstone policy states under, "CONDITIONS APPLICABLE TO ALL
COVERAGES":
7. Misrepresentation, C6ñcealment or Fraud-This entire policy is void if, whether before or
after a loss:
a. An insured has willfully concealed or misrepresented:
1) Any material fact or circuinstance concerning this insurance; or
2) An insured's interest herein.
b. There has been fraud or false swearing by an insured regarding a matter relating to this
insurance or the subject hereof.
FOURTH AFFIRMATIVE DEFENSE
There is no coverage under the Kingstone policy for any of the alleged damages which
occurred 39-41 Carleton Ave., Islip Terrace, NY 11752 on November 28, 2020 based upon the
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plaintiffs'
failure to cooperate with Kingstone in its investigation of the loss. The Kingstone policy
states under, "WHAT YOU MUST DO IN CASE OF LOSS OR CLAIM":
4. Cooperation-You must cooperate with us in performing all of the acts required by this policy.
FIFTH AFFIRMATIVE DEFENSE
There is no coverage under the Kingstone policy for any of the alleged damages which
occurred 39-41 Carleton Ave., Islip Terrace, NY 11752 on November 28, 2020 based upon the
plaintiffs'
willful refusal to appear for an Examination Under Oath and produce records, as
demanded. In relevant part, the Kingstone policy states under, "WHAT YOU MUST DO IN
CASE OF LOS$ OR CLAIM":
7. Additional Duties-Each insured, at our request, will separately:
a. Submit to examination under oath, at such times as may be reasonably required, about any
matter relating to this insurance or your claim, including f our books and records. In such
event, four answers must be signed;
b. Produce records, including tax returns and bank microfilms of all canceled checks,
relating to value, loss and expenses and permit copies and extracts to be made of them as
often as we reasonably request; and
SIXTH AFFIRMATIVE DEFENSE
plaintiffs'
The willful failure to appear at an Examirmtion Under Oath constitutes a material
breach of the cooperation clause of the Kingstone policy.
SEVENTH AFFIRMATIVE DEFENSE
The Kingstone policy is void ab initio because of material misrepresentations made by the
plaintiffs in their insurance application for the procurement of the Kingstone policy.
EIGHTH AFFIRMATIVE DEFENSE
There is no coverage for the allegations in the complaint because the premises that is the
subject of this lawsuit had been configured with illegal apartments rather than as a two-family
dwelling which was represented by the plaintiffs. Pursuant to its underwriting guidelines,
7 of 10
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Kingstone does not issue Dwelling Fire policies covering unacceptable and/or ineligible properties
which include, but are not limited to, premises with illegally converted apartments rented to
multiple tenants. Kingstone would not have issued the Kingstone policy had it known the true
configuration of the insured premises.
WHEREFORE, the answering defendant, KINGSTONE INSURANCE COMPANY,
respectfully requests that judgment be entered:
plaintiffs'
1. Dismissing the Complaint against the answering defendant with
prejudice;
2. Declaring that the answering defendant has no obligation to indemnify the plaintiffs
for any of the alleged damages which occurred 39-41 Carleton Ave., Islip Terrace, NY 11752 on
November 28, 2020; and
3. For such other relief as this Court may deem just and proper under the
circumstances.
Dated: White Plains, New York
September 23, 2021
McCAULEY LAW FIRM, PLLC
By:
To d M. McCauley, Esq.
Attorneys for Defendant
KINGSTONE INSURANC COMPANY
777 Westchester Avenue, Sui e 101
White Plains, NY 10604
Tel: (212) 679-3124
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ATTORNEY VERIFICATION
Todd M. McCauley, an attorney-at-law, affirms, under penalty of perjury, as follows:
That I am a member of McCauley Law Firm, PLLC, attorneys for Defendant, Kingstone
Insurance Company, in the within action; that the deponent has read the foregoing Verified Answer
and knows the contents thereof; that the same is true to my own knowledge, except as to the matters
therein stated upon information and belief, and as to those matters, I believe them to be true.
The grounds for my belief as to all matters not stated upon my own knowledge and the
source of my knowledge as to all the matters therein stated is the review of documentation and the
litigation file maintained by my office.
The reason why this Verification is not made by the answering defendant is that it does not
maintain an office in the County where my firm has an office.
Dated: White Plains, New York
September 23, 2020
Todd M. IcCauley
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McCAULEY LAW FIRM, PLLC
Attorney(s) for
Office and Post Office Address, Telephone
777 WESTCHESTER AVENUE - SUITE 101
WHITE PLAINS, NEW YORK 10604
(212) 679-3124
To
Attorney(s) for
rvice of a copy of the within VERIFIED ANSWER hereby admitted.
Dated,
Attõrñêy(s) for
Sir: Please take notice
O NOTICE OF ENTR_Y
that the within is a (certified) true copy of a
duly entered in the office of the clerk of the within named court on 20
O NOTICE OF SETTLEMENT
that an order of which the within is a true copy will be presented for
settlement to the HON. one of the judges.
of the within named Court, at
on the day of
Preview
FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ________. ----- X HOMELINE PROPERTIES OF ISLIP TERRACE, LLC., RAFAEL AVGI and RACHEL AVGI Index No.: 608053/2021 Plaintiffs, VERIFIED ANSWER -against- KINGSTONE INSURANCE COMPANY, K. BELL & ASSOCIATES, INC. and KEN BELL, INDIVIDUALLY Defendants. X Defendant, KINGSTONE INSURANCE COMPANY (hereinafter "KINGSTONE"), by and through its attorneys, McCauley Law Firm, PLLC, hereby answers the Verified Complaint, dated April 30, 2021, of the plaintiffs, HOMELINE PROPERTIES OF ISLIP TERRACE, LLC., RAFAEL AVGI and RACHEL AVGI, upon information and belief, as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of the "1" allegations set forth in Paragraph of the Complaint. 2. Denies knowledge or information sufficient to form a belief as to the truth of the "2" allegations set forth in Paragraph of the Complaint. 3. Denies knowledge or information sufficient to form a belief as to the truth of the "3" allegations set forth in Paragraph of the Complaint. 4. Denies knowledge or information sufficient to form a belief as to the truth of the "4" allegations set forth in Paragraph of the Complaint. "5" 5. Denies the truth of the allegations set forth in Paragraph of the Complaint, except admits that Kingstone was, and still is, a stock insurance company organized under the laws of the State of New York, with offices for the transaction of business located within the State of 1 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 New York and is duly licensed and authorized to issue policies of insurance, including dwelling fire insurance policies. "6" 6. Admits the truth of the allegations set forth in Paragraph of the Complaint. "7" 7. Denies the truth of the allegations set forth in Paragraph of the Complaint, except admits that Kingstone was, and still is, a stock insurance conipany organized under the laws of the State of New York, with offices for the transaction of business located within the State of New York and is duly licensed and authorized to issue policies of insurance, including dwelling fire insurance policies. 8. Denies knowledge or information sufficient to form a belief as to the truth of the "8" allegations set forth in Paragraph of the Complaint. 9. Denies knowledge or information sufficient to form a belief as to the truth of the "9" allegations set forth in Paragraph of the Complaint. 10. Denies knowledge or information sufficient to form a belief as to the truth of the "10" allegations set forth in Paragraph of the Complaint. "11" 11. Denies the truth of the allegations set forth in Paragraph of the Coniplaint, except admits that Kingstone issued to the plaintiffs, Rachel and Rafael Avgi and Home Line Properties of Islip Terrace, LL, a dwelling fire renewal policy of insurance, policy number DF3014874-08, with effective dates of December 27, 2019 to December 27, 2020, which provides insurance coverage for 39-41 Carleton Avenue, Islip Terrace, New York ("the Kingstone policy"). "12" 12. Denies the truth of the allegations set forth in Paragraph of the Complaint, except admits that the Kingstone policy provides insurance coverage for 39-41 Carleton Avenue, Islip Terrace, New York (the "insured premises") with the coverages and policy limits set forth in the Kingstone policy insurance declarations. 2 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 13. Denies knowledge or information sufficient to form a belief as to the truth of the "13" allegations set forth in Paragraph of the Complaint. 14. Denies knowledge or information sufficient to form a belief as to the truth of the "14" allegations set forth in Paragraph of the Complaint. 15. Denies the truth of the allegations set forth in Paragraph "15 of the Complaint, except admits that Kingstone issued to the plaintiffs, Rachel and Rafael Avgi and Home Line Properties of Islip Terrace, LL, a dwelling fire renewal policy of insurance, policy number DF3014874-08, with effective dates of December 27, 2019 to December 27, 2020, which provides insurance coverage for 39-41 Carleton Avenue, Islip Terrace, New York ("the Kingstone policy"). 16. Denies the truth of the allegations set forth in Paragraph "16 of the Complaint, except admits that Kingstone issued to the plaintiffs, Rachel and Rafael Avgi and Home Line Properties of Islip Terrace, LL, a dwelling fire renewal policy of insurance, policy number DF3014874-08, with effective dates of December 27, 2019 to December 27, 2020, which provides insurance coverage for 39-41 Carleton Avenue, Islip Terrace, New York ("the Kingstone policy"). AS FOR A RESPONSE TO THE FIRST CAUSE OF ACTION 17. Answering defendant repeats, reiterates and reasserts each and every response "1" contained in paragraphs through "16", inclusive, as if fully set forth herein. 18. Denies knowledge or information sufficient to form a belief as to the truth of the "18" allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. 19. Denies knowledge or information sufficient to form a belief as to the truth of the "19" allegations set forth in Paragraph of the Complaint. 3 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 20. Denies the truth of the allegations set forth in Paragraph "15 of the Complaint, except admits that Kingstone issued to the plaintiffs, Rachel and Rafael Avgi and Home Line Properties of Islip Terrace, LL, a dwelling fire renewal policy of insurance, policy number DF3014874-08, with effective dates of December 27, 2019 to December 27, 2020, which provides coverage for 39-41 Carleton Avenue, Islip Terrace, New York ("the Kingstone policy"). "21" 21. Denies the truth of the allegations set forth in Paragraph ofthe Complaint and refers all matters of law to the trial court. "22" 22. Denies the truth of the allegations set forth in Paragraph of the Complaint. "23" 23. Denies the truth of the allegations set forth in Paragraph of the Complaint. "24" 24. Denies the truth of the allegations set forth in Paragraph of the Complaint. "25" 25. Denies the truth of the allegations set forth in Paragraph of the Complaint. "26" 26. Denies the truth of the allegations set forth in Paragraph of the Complaint except admits that Kingtstone issued to the plainiffs Reservation of Rights letters dated December 17, 2020 and February 16, 2021, reseving its rights under the Kingstone policy pending completion of its investigation of the subject loss. "27" 27. Denies the truth of the allegations set forth in Paragraph of the Complaint except admits that the McCauley Law Firm, PPLC on behalf of Kingstone issued a letter to the plaintiffs demanding that they appear for an Examination Under Oath, pursuant to the terms and conditions of the Kingstone policy, and in furtherance of Kingstone's investigation of the subject loss. "28" 28. Denies the truth of the allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. 4 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 29. Denies knowledge or information sufficient to form a belief as to the truth of the "29" allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. 30. Denies knowledge or information sufficient to form a belief as to the truth of the "30" allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. "31" 31. Denies the truth of the allegations set forth in Paragraph of the Complaint. "32" 32. Denies the truth of the allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. "33" 33. Denies the truth of the allegations set forth in Paragraph of the Complaint. 34. Denies knowledge or information sufficient to form a belief as to the truth of the "34" allegations set forth in Paragraph of the Coinplaint and refers all matters of law to the trial court. "35" 35. Denies the truth of the allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. "36" 36. Denies the truth of the allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. "37" 37. Denies the truth of the allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. "38" 38. Denies the truth of the allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. "39" 39. Denies the truth of the allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. 5 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 "40" 40. Denies the truth of the allegations set forth in Paragraph of the Complaint and refers all matters of law to the trial court. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFEN5E The Complaint fails to set forth a cause of action as to the answering defendant upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE The plaintiffs have failed to perform all of the obligations and duties precedent to coverage under the Kingstone policy. THIRD AFFIRMATIVE DEFENSE There is no coverage under the Kingstone policy for any of the alleged damages which occurred 39-41 Carleton Ave., Islip Terrace, NY 11752 on November 28, 2020 based upon material misrepresentation, concealment or fraud made by the plaintiffs in the procurement of the Kingstone policy. The Kingstone policy states under, "CONDITIONS APPLICABLE TO ALL COVERAGES": 7. Misrepresentation, C6ñcealment or Fraud-This entire policy is void if, whether before or after a loss: a. An insured has willfully concealed or misrepresented: 1) Any material fact or circuinstance concerning this insurance; or 2) An insured's interest herein. b. There has been fraud or false swearing by an insured regarding a matter relating to this insurance or the subject hereof. FOURTH AFFIRMATIVE DEFENSE There is no coverage under the Kingstone policy for any of the alleged damages which occurred 39-41 Carleton Ave., Islip Terrace, NY 11752 on November 28, 2020 based upon the 6 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 plaintiffs' failure to cooperate with Kingstone in its investigation of the loss. The Kingstone policy states under, "WHAT YOU MUST DO IN CASE OF LOSS OR CLAIM": 4. Cooperation-You must cooperate with us in performing all of the acts required by this policy. FIFTH AFFIRMATIVE DEFENSE There is no coverage under the Kingstone policy for any of the alleged damages which occurred 39-41 Carleton Ave., Islip Terrace, NY 11752 on November 28, 2020 based upon the plaintiffs' willful refusal to appear for an Examination Under Oath and produce records, as demanded. In relevant part, the Kingstone policy states under, "WHAT YOU MUST DO IN CASE OF LOS$ OR CLAIM": 7. Additional Duties-Each insured, at our request, will separately: a. Submit to examination under oath, at such times as may be reasonably required, about any matter relating to this insurance or your claim, including f our books and records. In such event, four answers must be signed; b. Produce records, including tax returns and bank microfilms of all canceled checks, relating to value, loss and expenses and permit copies and extracts to be made of them as often as we reasonably request; and SIXTH AFFIRMATIVE DEFENSE plaintiffs' The willful failure to appear at an Examirmtion Under Oath constitutes a material breach of the cooperation clause of the Kingstone policy. SEVENTH AFFIRMATIVE DEFENSE The Kingstone policy is void ab initio because of material misrepresentations made by the plaintiffs in their insurance application for the procurement of the Kingstone policy. EIGHTH AFFIRMATIVE DEFENSE There is no coverage for the allegations in the complaint because the premises that is the subject of this lawsuit had been configured with illegal apartments rather than as a two-family dwelling which was represented by the plaintiffs. Pursuant to its underwriting guidelines, 7 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 Kingstone does not issue Dwelling Fire policies covering unacceptable and/or ineligible properties which include, but are not limited to, premises with illegally converted apartments rented to multiple tenants. Kingstone would not have issued the Kingstone policy had it known the true configuration of the insured premises. WHEREFORE, the answering defendant, KINGSTONE INSURANCE COMPANY, respectfully requests that judgment be entered: plaintiffs' 1. Dismissing the Complaint against the answering defendant with prejudice; 2. Declaring that the answering defendant has no obligation to indemnify the plaintiffs for any of the alleged damages which occurred 39-41 Carleton Ave., Islip Terrace, NY 11752 on November 28, 2020; and 3. For such other relief as this Court may deem just and proper under the circumstances. Dated: White Plains, New York September 23, 2021 McCAULEY LAW FIRM, PLLC By: To d M. McCauley, Esq. Attorneys for Defendant KINGSTONE INSURANC COMPANY 777 Westchester Avenue, Sui e 101 White Plains, NY 10604 Tel: (212) 679-3124 8 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 ATTORNEY VERIFICATION Todd M. McCauley, an attorney-at-law, affirms, under penalty of perjury, as follows: That I am a member of McCauley Law Firm, PLLC, attorneys for Defendant, Kingstone Insurance Company, in the within action; that the deponent has read the foregoing Verified Answer and knows the contents thereof; that the same is true to my own knowledge, except as to the matters therein stated upon information and belief, and as to those matters, I believe them to be true. The grounds for my belief as to all matters not stated upon my own knowledge and the source of my knowledge as to all the matters therein stated is the review of documentation and the litigation file maintained by my office. The reason why this Verification is not made by the answering defendant is that it does not maintain an office in the County where my firm has an office. Dated: White Plains, New York September 23, 2020 Todd M. IcCauley 9 of 10 FILED: SUFFOLK COUNTY CLERK 02/28/2023 09/23/2021 03:16 05:09 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 51 29 RECEIVED NYSCEF: 02/28/2023 09/23/2021 McCAULEY LAW FIRM, PLLC Attorney(s) for Office and Post Office Address, Telephone 777 WESTCHESTER AVENUE - SUITE 101 WHITE PLAINS, NEW YORK 10604 (212) 679-3124 To Attorney(s) for rvice of a copy of the within VERIFIED ANSWER hereby admitted. Dated, Attõrñêy(s) for Sir: Please take notice O NOTICE OF ENTR_Y that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on 20 O NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges. of the within named Court, at on the day of