Motion-Secondary: Barry Yampol v. Certain Underwriters At Lloyd'S, London, including those subscribing to Syndicate Nos., Mit 3210, Pem 4000, Tal 1183, Mkl 3000, Cgm 2488, Axs 1686, Csl 1084, Asp 4711, Cof 1036, Auw 0609, Trv 5000, Ark 4020, Aal 2012, Adv 0780, Aul 1274, Afb 2623, Afb 0623, Aes 1225, Anv 1861, Enh 5151, Wrb 1967, Brt 2987, Apollo 9975, Chn 2015, Kln 0510

On January 18, 2023 a Motion-Secondary was filed involving a dispute between Barry Yampol, and Aal 2012, Adv 0780, Aes 1225, Afb 0623, Afb 2623, Anv 1861, Apollo 9975, Ark 4020, Asp 4711, Aul 1274, Auw 0609, Axs 1686, Brt 2987, Certain Underwriters At Lloyd'S, London, Including Those Subscribing To Syndicate Nos., Cgm 2488, Chn 2015, Cof 1036, Csl 1084, Enh 5151, Kln 0510, Mit 3210, Mkl 3000, Pem 4000, Tal 1183, Trv 5000, Wrb 1967, for Commercial Division - Insurance in the District Court of Nassau County.

Preview
FILED: NASSAU COUNTY CLERK 05/11/2023 08:19 PM INDEX NO. 601285/2023
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 05/11/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------------------x
BARRY YAMPOL,

Plaintiff, Index No. 601285/2023

-against- Judge Danielle M. Peterson

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, Motion Seq. 001
including those subscribing to Syndicate Nos. MIT 3210,
PEM 4000, TAL 1183, MKL 3000, CGM 2488, AXS
1686, CSL 1084, ASP 4711, COF 1036, AUW 0609, TRV
5000, ARK 4020, AAL 2012, ADV 0780, AUL 1274,
AFB 2623, AFB 0623, AES 1225, ANV 1861, ENH 5151,
WRB 1967, BRT 2987, Apollo 9975, CHN 2015, KLN
0510,

Defendants.
------------------------------------------------------------------------x

REPLY MEMORANDUM OF LAW IN FURTHER
SUPPORT OF THE MOTION TO DISMISS FILED BY
CERTAIN UNDERWRITERS AT LLOYD’S, LONDON

CLYDE & CO US LLP
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Tel: (212) 710-3900

Attorneys for Defendants Certain
Underwriters at Lloyd’s, London

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TABLE OF CONTENTS
Page(s)

PRELIMINARY STATEMENT .................................................................................................... 1

ARGUMENT .................................................................................................................................. 2

POINT I

THE COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT......... 2

A. Plaintiff fails to identify any allegations in his pleading that he “owns”, or provided
Underwriters with “satisfactory proof of ownership” concerning, the Imperial Topaz ..... 2

B. Plaintiff’s affidavits submitted in opposition are improper, fail to cure Plaintiff’s
pleading deficiencies and prove that Plaintiff has no breach of contract cause
of action .............................................................................................................................. 5

POINT II

PLAINTIFF’S CLAIM FOR BREACH OF THE CONVENANT OF GOOD FAITH AND
FAIR DEALING SHOULD BE DISMISSED ........................................................................ 9

CONCLUSION ............................................................................................................................. 12

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TABLE OF AUTHORITIES
Page(s)
Cases

Acquista v. New York Life Ins. Co., 285 A.D.2d 73 (1st Dep’t 2001) ..........................................10
Cnty. of Suffolk v. MHC Greenwood Vill., LLC, 91 A.D.3d 587 (2d Dep’t 2012) .........................8
D.K. Prop., Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 168 A.D.3d 505 (1st Dep’t 2019) ...10
E. Ramapo Cent. Sch. Dist. v. New York Sch. Ins. Reciprocal, 199 A.D.3d 881
(2d Dep’t 2021) .......................................................................................................................10
Everett v. Eastchester Police Dep't, 127 A.D.3d 1131 (2d Dep’t 2015) ........................................8
Harris v. Allstate Ins. Co., 83 F.Supp.2d 423 (S.D.N.Y. 2000) .................................................3, 4
Lola Roberts Beauty Salon, Inc. v. Leading Ins. Grp. Ins. Co., 160 A.D.3d 824
(2d Dep’t 2018) .......................................................................................................................10
MediaXposure Ltd. (Cayman) v. Omnireliant Holdings, Inc., 918 N.Y.S.2d 398 (Sup. Ct. N.Y.
Co. 2010) ...................................................................................................................................6
Mut. Ass'n Adm'rs, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 118 A.D.3d 856
(2d Dep’t 2014) .......................................................................................................................10
Olson v. E. Mut. Ins. Co., 54 Misc. 3d 577 (Sup. Ct. Columbia Co. 2016) ....................................4
Panasia Estates, Inc. v. Hudson Ins. Co., 10 N.Y.3d 200 (2008) .................................................10
Paterra v. Nationwide Mut. Fire Ins. Co., 38 A.D.3d 511 (2d Dep’t 2007) .................................10
Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976) ....................................................................5
Saferstein v. Mideast Sys., 143 A.D.2d 82 (2d Dep’t 1988) ...........................................................9
Sokol v. Leader, 74 A.D.3d 1180 (2d Dep’t 2010) .........................................................................5
Walia v. Napolitano, Civ. A. No. 11-2512, 2013 WL 6231175 (E.D.N.Y. Dec. 2, 2013) .............6

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PRELIMINARY STATEMENT

In opposing defendant-insurers’ (“Underwriters”) motion to dismiss, plaintiff-insured

(“Plaintiff”) fails to show that his Complaint properly alleges that he owned, or submitted

“satisfactory proof of ownership” concerning, the Imperial Topaz at issue, in satisfaction of a

condition precedent to coverage under his insurance policy. In an attempt to cure these fatal

pleading deficiencies, Plaintiff submits two self-serving statements: his own affidavit asserting

whole ownership of the Imperial Topaz and certain interested mining entities, and an affirmation

from a Brazilian attorney who purportedly reviewed and based his conclusions on documents

produced to him by Plaintiff.

However, these documents constitute a series of damning admissions: (1) an admission

that Plaintiff failed to allege his ownership of the Imperial Topaz in his Complaint and its exhibits;

(2) an admission that potentially relevant documentation not previously produced to Underwriters

exists and has been in Plaintiff’s control for years, despite claims to the contrary; (3) an admission

that Plaintiff failed to produce these materials in response to Underwriters’ multiple requests made

during their claim investigation; and, most importantly, (4) an admission that Plaintiff has no claim

for breach of contract in this action, as he failed to comply with a condition precedent to coverage

under his insurance policy.

For the reasons set forth in herein and Underwriter’ original motion papers, Underwriters

respectfully request that the Court grant their motion to dismiss and dismiss Plaintiff’s Complaint

in its entirety.

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ARGUMENT

POINT I

THE COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT

A. Plaintiff fails to identify any allegations in his pleading that he “owns”, or provided
Underwriters with “satisfactory proof of ownership” concerning, the Imperial Topaz.

Plaintiff does not dispute that as a condition precedent to coverage under the Policy he

must first demonstrate his ownership of the item(s) at issue in this case. Specifically, the Policy’s

“Onus of Proof” condition states:

Notwithstanding anything contained herein to the contrary, it is hereby understood and
agreed that the value of the items insured hereunder is not agreed and that in the event of
any claim being made hereon for loss of or damage to any of the said insured property, the
onus of proving the value of any items for which 3 a claim is made hereunder shall be upon
the Insured. It is warranted as a condition precedent to the Insured making any
recovery hereunder for loss of or damage to the insured property that the
presentation of satisfactory proof of value and ownership shall have been made to and
accepted by Underwriters.

See Mem. in Supp. at 2-3 (Compl. ¶50; Ex. 1, Policy at 7 of 18) (underlining and bold added);

Mem. in Opp. at 8 (acknowledging that “[t]he Policy provides that it is ‘a condition precedent’ that

‘the presentation of satisfactory proof of . . . ownership shall have been made to and accepted by

[Defendants]’”). Thus, it was incumbent upon Plaintiff (indeed, he admits it was his burden) to

present Underwriters with proof of ownership and value in order to establish his claim. (Compl.

¶¶53-56.) Underwriters were then permitted to determine whether Plaintiff provided the requisite

"satisfactory proof”. (Id.)

Underwriters’ motion reveals for the Court that Plaintiff failed to provide any documents

concerning his ownership in the six (6) years between the loss and this lawsuit, during which time

Underwriters repeatedly requested information that Plaintiff said was forthcoming but which he

never produced. As one example, Plaintiff failed to produce or identify a single bill of sale, receipt,

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acknowledgment of funds transfer, or other document evidencing even a vague chain of title for

the Imperial Topaz. See Mem. in Supp. at 3-7. As another, more egregious one: Plaintiff fails to

even allege in the Complaint that he owns the Imperial Topaz at issue. Id. at 11-12.

In opposition to Underwriters’ motion, Plaintiff asks the Court to engage in mental

gymnastics in order to save his claim for breach of contract. Plaintiff argues that “the only

reasonable inference to be drawn” from the sworn proof of loss (“POL”) “is that [Plaintiff] is

claiming that he owns the property.” (Mem. in Opp. at 6.) This is unavailing. As Plaintiff

acknowledges, the POL states only that Plaintiff had 100% interest in the property, but there is no

indication what “interest” means in that context. Underwriters demonstrated in their original

moving papers that, generally, interest (even an insurable interest) does not equal ownership. See

Mem. in Supp. at 10. In any event, the Policy requires more than an insurable interest, more than

a possessory interest, or more than a security interest in the property: it requires that the property

be owned by the insured and that the insured prove the same. Despite Plaintiff’s attempts to

recharacterize the POL and the Complaint, these documents speak for themselves and say nothing

concerning Plaintiff’s ownership of the Imperial Topaz.1

Further, Plaintiff’s argument that the POL constitutes “satisfactory proof of ownership”

fails because the POL is not “proof of ownership” as a matter of law. Specifically, it is a formal

statement of the insured’s claim that must be submitted, usually upon demand (although not here).

See Harris v. Allstate Ins. Co., 83 F.Supp.2d 423, 428 (S.D.N.Y. 2000). Its primary purpose is to

enable an insurer to form an opinion as to their rights and liabilities under the policy in question,

“promptly and while the information is still fresh” and to afford the insurers like Underwriters the

1
The POL was prepared by Plaintiff at a time when he was represented by his current counsel, one of the most
sophisticated policy holder insurance law firms in the United States. Had Plaintiff wanted the POL to say what he now
asks the Court to “reasonably infer” it says, he could have done so, either by handwritten correction or otherwise.

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opportunity to investigate and evaluate the loss, and “to protect themselves against false claims”.

Id.

Plaintiff’s opposition papers put the cart before the horse. You cannot just say, as Plaintiff

argues, “Here’s my POL”, and objectively satisfy your burden to show “satisfactory proof of

ownership”. You have to provide other documentation showing “satisfactory proof of ownership”

separate and apart from the proof of loss. By presenting his POL, Plaintiff did not automatically

meet his burden to show “satisfactory proof of ownership”. To the contrary: because the

information submitted in support of his claim by Plaintiff was deficient, Underwriters continued

to seek information even after Plaintiff submitted his unsolicited POL. (See Compl., Ex. 3, 5.)

Underwriters were well within their rights to request – and request they did – receipts,

transactional documents, bills of sale, and other materials that might constitute actual proof that

Plaintiff owned the Imperial Topaz in question. Pursuant to the Onus of Proof clause, Plaintiff was

required to produce these documents or any other information that established ownership. Yet he

remains unable to point to any allegation or document submitted with his pleadings that establishes

he did so. Moreover, as we now know from Plaintiff’s opposition papers, documentation requested

on numerous occasions by Underwriters during their investigation did exist and was withheld by

Plaintiff for reasons unknown. C.f., e.g., Olson v. E. Mut. Ins. Co., 54 Misc. 3d 577, 579 (Sup. Ct.

Columbia Co. 2016) (recognizing one viable excuse for an insured not producing proof of

ownership where documentation was destroyed and no longer existed in any form).

Plaintiff also argues that Underwriters’ motion should be denied because the Complaint

contains the necessary language, yet Plaintiff encounters a familiar problem of his own making.

Despite repeated attempts to massage language in his favor (Mem. in Opp. at 6), Plaintiff cannot

point to a single, specific allegation that he “owned” the Imperial Topaz at issue in this case.

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Instead, Plaintiff’s counsel resorts to defining certain “possessive pronouns” (Mem. in Opp. at 7),

showing use of the “possessive form” (id.), explaining that Plaintiff “acquired” a portion of a mine

reserve and providing a definition for “acquire” (id. at 8), and even once again stating that Plaintiff

owned the mine from which the Imperial Topaz was extracted (id.). None of these allegations

constitutes an allegation of ownership of the Imperial Topaz.2

As set forth in Underwriters’ motion (Mem. in Supp. at 11), Plaintiff knows how to state

he owns something when he actually owns it. Plaintiff alleges that he “owns the insured residence

at 11 Tennis Court Road, Cove Neck, New York, 11771” (Compl. ¶16), and that he owns the

Vermillion Mine in Ouro Preto, Brazil (see, e.g., Compl., “Factual Background”, subsection A.

(entitled “Barry Yampol…Owns an Imperial Topaz Mine in Brazil”). In sum, there is no allegation

that Plaintiff owns the Imperial Topaz at issue in this case, either in the Complaint, its exhibits or

the materials cited by Plaintiff in his opposition papers.

B. Plaintiff’s affidavits submitted in opposition are improper, fail to cure Plaintiff’s
pleading deficiencies, and demonstrate a lack of claim for breach of contract.
In opposing a motion pursuant to CPLR §3211(a)(7), a plaintiff may submit affidavits for

“a limited purpose only, ... to remedy defects in the complaint”. Rovello v. Orofino Realty Co., 40

N.Y.2d 633, 636 (1976); Sokol v. Leader, 74 A.D.3d 1180, 1181 (2d Dep’t 2010). It stands to

reasons that if Plaintiff had properly alleged ownership of the Imperial Topaz in his Complaint and

its exhibits, there would have been no need for the submission of either his own affidavit in

opposition, or the affirmation of his Brazilian attorney, Luiz Lopes.

2
Oddly, Plaintiff suggests that “if [Underwriters] were refusing to pay [his] claim because he did not say the magic
word— “own”…they could have simply asked Mr. Yampol at any point over the past six years to swear that he
“owned” his Imperial Topaz, and the matter would have been resolved.” As set forth above, it is undisputed that the
Onus of Proof was on Plaintiff to “provide satisfactory proof of ownership”. If Plaintiff felt that swearing in an
affidavit that he owned the Imperial Topaz would be useful in terms of providing “satisfactory proof of ownership” to
Underwriters, it was his duty to prepare and submit such an affidavit, not Underwriters’ duty to ask for it.

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Of note, Plaintiff states the following in his affidavit:

“From the time that I bought the Vermillion Mine and surrounding land in Ouro Preto,
Minas Gerais, Brazil through my acquisition of Vermelhao Mineracao Industria e
Comercio Ltda. ("VERMELHAO") on June 14, 1985, through my discovery on April 2,
2017, of the disappearance of the approximately 26 kg collection of imperial topaz, which
I wholly owned and which is the subject of the above-captioned action. I wholly owned
VERMELHAO and all of the entities that owned VERMELHAO. These entities include
VERMELHAO, Gemini — Industria e Comercio Ltda., Azurite Corp. Ltd., and the Barry
Yampol Trust, a grantor trust containing assets I own and as to which I am the 100%
beneficiary.”

See Yampol Aff., ¶2.

Plaintiff argues that this paragraph “confirm[s] Mr. Yampol’s ownership of his Imperial

Topaz” (Mem. in Opp. at 11). But by attempting to augment his clear pleading deficiencies,

Plaintiff’s affidavit actually alleges a series of new facts, such as asserting that he wholly-owned

Vermelhão Mineração Indústria e Comércio Ltda. (“Vermelhão”), the entity through which Mr.

Yampol allegedly acquired his mine, and all the entities involved in the acquisition and operation

of his mine. All this does is raise more questions concerning chain of title for the Imperial Topaz

taken from the mine. See Yampol Aff., ¶2. This is also procedurally improper, as a plaintiff may

not amend his complaint in opposition to a motion to dismiss. MediaXposure Ltd. (Cayman) v.

Omnireliant Holdings, Inc., 918 N.Y.S.2d 398 (Sup. Ct. N.Y. Co. 2010); see also, e.g., Walia v.

Napolitano, Civ. A. No. 11-2512, 2013 WL 6231175, at *11 (E.D.N.Y. Dec. 2, 2013) (holding

that Plaintiff cannot amend his complaint by asserting new facts for the first time in opposition to

Defendants' motion to dismiss, especially those within his own knowledge and control).

To further buttress these new facts, Plaintiff submits the affirmation of Mr. Lopes. While

there are a number of issues with Mr. Lopes’ affirmation,3 most importantly, it is purportedly based

3
For example, this affirmation, submitted primarily as a counterpoint to the Affirmation of Paolo Brandao, which was
submitted by Underwriters solely for the purpose of the Court to take judicial notice of the Brazilian Constitution and
Brazilian mining law, also reads like an amended pleading, freely making new factual assertions and conclusions with

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upon a review of certain exhibits Mr. Lopes attaches thereto, including: (1) documents concerning

the current legal status of Plaintiff’s mining rights in Brazil (Lopes Aff., Ex. B); (2) articles of

organization concerning the Vermelhao Mine, both before and after Plaintiff reportedly bought the

mine (Lopes Aff., Ex. C and EX. H); (3) land purchase documents for the Vermelhao Mine (Lopes

Aff., Ex. D and Ex. E); (4) agreements concerning the Mine’s Mining Rights license (Lopes Aff.,

Ex. F); (5) transactional documents concerning the sale of Vermelhao Mine to a Brazilian entity

owned by Plaintiff (Gemini Industria e Comercio Ltda.) (Lopes Aff., Ex. G); (6) Gemini’s articles

of incorporation on file in Brazil (Lopes Aff., Ex. H); and (7) an attorney’s letter from 1985

prepared by Yampol’s then-counsel concerning Mr. Yampol’s legal status in connection with the

mine (Lopes Aff., Exhibit I). Yet these documents, all of which were arguably relevant to the

satisfaction of Plaintiff’s “proof of ownership” requirement under his Policy,4 were never provided

to Underwriters during their investigation. See Mancuso Reply Aff., ¶¶ 7-8.

On one hand, Plaintiff complains about Underwriters’ requests for documents just like

those he produced in opposition to this motion, while on the other Plaintiff notes that they provide

a basis for his breach of contract claim. For example, he asserts that “although [he] confined his

Proof of Loss to the Imperial Topaz, the Insurers refused to acknowledge the scope of his claim

for coverage and continued to…demand[] responses to…[irrelevant] questions” concerning his

proof of ownership of the Imperial Topaz. (Compl. ¶69.) He also alleges that, in a June 29, 2021

letter, “Underwriters demanded that [Plaintiff] produce ’purchase’ and ‘mining’ records that are

up to three decades old and, to the extent they still exist, would be stored in Brazil, one of the

its exhibits. Further, pursuant to CPLR §2101, where an affidavit or exhibit annexed to a paper served or filed is in a
foreign language, it shall be accompanied at the very least by an English translation, which it is not. See CPLR §2101.

4
Underwriters do not accept that these documents establish Plaintiff’s ownership of the Imperial Topaz. However,
even if accepted as true, the existence of these documents without production to Underwriters proves Plaintiff’s non-
compliance with the Onus of Proof in the Policy.

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countries hit hardest by the pandemic” (Compl. ¶71). And, without foundation, he alleges that this

was all part of Underwriters’ “practice of chastising Mr. Yampol for not providing documentation

they know does not exist and is not required to obtain coverage.” (Compl. ¶74.) (emphasis added)

Well, as it turns out, the documentation exists!

If the court considers evidentiary material on a motion to dismiss (Mem. in Supp. at 9),

“the criterion then becomes []whether the proponent of the pleading has a cause of action, not

whether he has stated one[]” Cnty. of Suffolk v. MHC Greenwood Vill., LLC, 91 A.D.3d 587, 589

(2d Dep’t 2012). Further, factual claims flatly contradicted by the record are not entitled to any

such consideration, nor are legal conclusions or factual claims which are inherently incredible

entitled to any such consideration. Everett v. Eastchester Police Dep't, 127 A.D.3d 1131, 1132 (2d

Dep’t 2015).

Here, the “facts” and allegations concerning Underwriters’ alleged breach of contract are

flatly contradicted by the existence of the documents produced by Plaintiff in opposition

(Underwriters do not concede they establish Mr. Yampol’s ownership), which were not produced

during the investigation of Plaintiff’s claim. There can be no serious dispute -- these documents

refute countless, critical allegations that Underwriters were harassing Plaintiff for documents

which they knew did not exist and that Underwriters were asking irrelevant questions and seeking

irrelevant information to support Plaintiff’s claim of ownership of the Imperial Topaz.

Under New York law, there can be no action for breach of contract where the party seeking

to enforce the contract has failed to perform a specified condition precedent. See Mem. in Supp.

at 10. As Plaintiff admits, he was required to present satisfactory proof that he owned the Imperial

Topaz for which he seeks coverage.” (Compl. ¶53.) However, the submission of these documents

from Brazil – documents which Plaintiff and his counsel presumably had access to for many years

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but never provided – reflects that Plaintiff failed to comply with the condition precedent to

coverage. As such, there can be no cause of action for breach of contract and the Complaint should

be dismissed.5

POINT II

PLAINTIFF’S CLAIM FOR BREACH OF THE CONVENANT OF GOOD FAITH AND
FAIR DEALING SHOULD BE DISMISSED

New York law does not recognize a separate cause of action for breach of the implied

covenant of good faith and fair dealing when a breach of contract claim based upon the same facts

is also pled. See Mem. in Supp. at 18. A claim alleging breach of the implied covenant of good

faith and fair dealing can survive a motion to dismiss “only if it is based on allegations different

from those underlying the accompanying breach of contract claim.” Id. Here, Plaintiff’s claim for

breach of contract is duplicative with his claim for breach of the covenant of good faith and fair

dealing, as they were based upon the same allegations. See Id. at 18-19.

In opposition, Plaintiff argues that these claims as pled are one and the same: that

Underwriters’ alleged bad faith is merely an additional basis for Mr. Yampol’s breach of contract

claim (Mem. in Opp. at 15). Yet at the same time Plaintiff argues he is entitled to distinct damages

arising from Underwriters’ alleged breach of good faith and fair dealing (id. at 17-18). This

argument fails for several reasons.

First, in support of his argument that he is entitled to consequential damages, Plaintiff relies

on a number of inapposite cases. In the cases Plaintiff cites, the plaintiffs had asserted a separate

5
While Plaintiff requests leave to amend his Complaint should the Court grant Underwriters’ motion to dismiss,
Underwriters respectfully submit that permitting amendment here would not change the fact that Plaintiff failed to
comply with a condition precedent to coverage under his Policy by failing to produce these documents to Underwriters.
As such, it is respectfully submitted that amendment would be futile here, and such request should be denied.
Saferstein v. Mideast Sys., 143 A.D.2d 82, 83 (2d Dep’t 1988) (“Although leave to amend a pleading should be freely
granted, the court is not required to permit futile amendments which may lead to needless litigation [internal citations
omitted]”).

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and distinct cause of action for a breach of the covenant of good faith and fair dealing. See, e.g.,

D.K. Prop., Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 168 A.D.3d 505, 506 (1st Dep’t 2019)

(consequential damages sought for bad faith cause of action.); Acquista v. New York Life Ins. Co.,

285 A.D.2d 73, 77–78 (1st Dep’t 2001) (same); E. Ramapo Cent. Sch. Dist. v. New York Sch. Ins.

Reciprocal, 199 A.D.3d 881, 882 (2d Dep’t 2021) (same); see also, Vandegriff Aff., Ex. 2 at page

23 (same). That is not the case here as, according to Plaintiff, his bad faith claim is intertwined in

his breach of contract claim. Thus, Plaintiff does not have a claim for consequential damages

beyond the limits of the policy for the claimed breach of contract. Paterra v. Nationwide Mut.

Fire Ins. Co., 38 A.D.3d 511, 513 (2d Dep’t 2007).

Further, in order to properly plead a claim for consequential damages, Plaintiff is required

to allege that “[the]…damages [sought were] within the contemplation of the parties as the

probable result of a breach at the time of or prior to contracting” Mut. Ass'n Adm'rs, Inc. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, PA, 118 A.D.3d 856, 857 (2d Dep’t 2014) (quoting Panasia

Estates, Inc. v. Hudson Ins. Co., 10 N.Y.3d 200, 203 (2008)).

But Plaintiff does not allege (or point to any provision of the Policy in support of his

argument) that the consequential damages sought were within the contemplation of the parties as

the probable result of a breach at the time of or prior to contracting, as is required. Lola Roberts

Beauty Salon, Inc. v. Leading Ins. Grp. Ins. Co., 160 A.D.3d 824, 825 (2d Dep’t 2018). Plaintiff

instead argues that “[a] reasonable insurer should have foreseen at the time of contracting that, if

it later engaged in misconduct on a $42 million claim—such as by hiring both an adjuster and an

outside law firm to send missive after missive demanding irrelevant information—the insured

would of course need to retain lawyers to respond and ultimately to sue to obtain the payment that

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has been wrongfully delayed.” (Mem. in Opp. at 17-18). Such an argument, without pointing to a

corresponding allegation or policy provision, is insufficient as a matter of law.6

Plaintiff also presents no viable argument that he is entitled to seek consequential damages

for his “inconvenience and aggravation.” See Mem. in Supp. at 20. Nor does he point to “any

pertinent contractual or statutory provision with respect to the recovery of amounts expended in

the successful prosecution or defense of an action”, such that his claim for attorney’s fees must

also be dismissed. Id. at 22-23.

Finally, Plaintiff provides no case law in support of his position that the Court may consider

N.Y. Insurance Code § 216.4 for the purposes of assessing whether Underwriters’ conduct was

reasonable or demonstrated undue delay in connection with his breach of covenant of good faith

and fair dealing allegations. As set forth in Underwriters’ motion to dismiss, a claim under this

regulation is improperly made here -- the exclusive power to enforce New York's Unfair Claims

Settlement Practices Act and the regulations promulgated thereunder (including §216.4) lies not

with the Courts, but with the Superintendent of Insurance.7 See Mem. in Supp. at 21. Further, the

Unfair Claims Settlement statute (§2601), from which the regulation at issue is derived, addresses

only how insurance companies must conduct themselves in settling claims against the insured, not

in handling claims for reimbursement that the insurance company receives from the insured. Id.

While Plaintiff argues that the cases cited by Underwriters in some way apply solely to the statute

(§2601), he provides no legal support for his argument that they do not apply to its corresponding

regulations.

6
Contrary to Plaintiff’s assertions here, Plaintiff had an attorney involved with his claim from the start, when only
Underwriters adjuster was involved. See Mancuso Aff., Ex. B.

7
As the Court is aware, the Superintendent of Insurance is now the Superintendent of the Department of Financial
Services.

14 of 16
FILED: NASSAU COUNTY CLERK 05/11/2023 08:19 PM INDEX NO. 601285/2023
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 05/11/2023

CONCLUSION

Based on the foregoing, and the arguments set forth in Underwriters’ original motion

papers, Underwriters respectfully submit the Complaint must be dismissed in its entirety with

prejudice.

Dated: New York, New York
May 11, 2023
CLYDE & CO US LLP

By: ____________________
Owen B. Carragher
Jason L. Ederer
David C. Sienko
405 Lexington Avenue, 16th Floor
New York, New York 10174
(212) 710-3900
owen.carragher@clydeco.us
jason.ederer@clydeco.us
david.sienko@clydeco.us

Attorneys for Defendants Certain
Underwriters at Lloyd’s, London

15 of 16
FILED: NASSAU COUNTY CLERK 05/11/2023 08:19 PM INDEX NO. 601285/2023
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 05/11/2023

ATTORNEY CERTIFICATION PURSUANT TO NYCRR 202.8b

I, Owen B. Carragher, an attorney admitted to practice before the Courts of the State of

New York, hereby certify that the word count of the attached Memorandum of Law, excluding

caption, table of contents, table of authorities and signature block, is 3850.

/s/ Owen B. Carragher

Dated: New York, New York
May 11, 2023

16 of 16

Case Info

Judge

Danielle M Peterson Track Judge’s New Case

Case No.

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Document Filed Date

May 11, 2023

Case Filing Date

January 18, 2023

County

Parties

AAL 2012 Defendant
ADV 0780 Defendant
AES 1225 Defendant
AFB 0623 Defendant
AFB 2623 Defendant
ANV 1861 Defendant
Apollo 9975 Defendant
ARK 4020 Defendant
ASP 4711 Defendant
AUL 1274 Defendant
AUW 0609 Defendant
AXS 1686 Defendant
Barry Yampol Plaintiff
BRT 2987 Defendant
CARRAGHER, OWEN BERNARD Attorney for the Defendant
Certain Underwriters at Lloyd's, London, including those subscribing to Syndicate Nos. Defendant
CGM 2488 Defendant
CHN 2015 Defendant
COF 1036 Defendant
CSL 1084 Defendant
EDERER, JASON LEE Attorney for the Defendant
ENH 5151 Defendant
KLN 0510 Defendant
LUTTINGER, DAVID ANDREW Attorney for the Plaintiff
MIT 3210 Defendant
MKL 3000 Defendant
PEM 4000 Defendant
TAL 1183 Defendant
TRV 5000 Defendant
VANDEGRIFF, JOSEPH DANIEL Attorney for the Plaintiff
WRB 1967 Defendant
SABRINA MIESOWITZ Attorney
JEFFREY SMITH Attorney

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