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FILED: NEW YORK COUNTY CLERK 09/20/2019 10:37 AM INDEX NO. 150210/2017
NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 43
TOWER INSURANCE COMPANY OF NEW Index No.: 150210/2017
YORK, MSQ No.: 006
Hon. Robert Reed, J.S.C.
Plaintiff,
-against- AFFIRMATION IN OPPOSITION
& IN SUPPORT OF CROSS-MOTION
TYPHYNE JOHNSON, and YVETTE
BRANTLEY,
ORAL ARGUMENT
Defendants. REQUESTED
TYPHYNE JOHNSON,
Third-Party Plaintiff,
-against-
HSBC MORTGAGE CORPORATION (USA),
NORTHEAST AGENCIES, INC., and LESTER
DAVIS,
Third-Party Defendants.
ZACHARY G. MEYER, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following upon information and belief:
1. I am a partner in the law firm SUTTON SACHS MEYER PLLC, attorneys for
defendant/third-party plaintiff TYPHYNE JOHNSON (hereinafter, “Johnson”) in the above-
captioned matter, and as such, I am fully familiar with the facts and circumstances therein based
upon my review of the file maintained by our office, as well as my conversations with the client,
and a reasonable investigation into the matter.
2. I respectfully submit this Affirmation in Opposition to third-party defendant
NORTHEAST AGENCIES, INC.’s (hereinafter, “Northeast”) motion for an Order, pursuant to
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CPLR § 3212, et seq., denying Northeast summary judgment, and in Support of Johnson’s cross-
motion for an Order, pursuant to CPLR § 3211(f), granting Johnson a Continuance of the instant
motion as to ascertain facts currently unavailable to Johnson, which are respectfully set forth in
greater detail in Johnson’s accompanying Memorandum of Law, upon the following grounds:
a. Northeast, as the insurance procurement agent, owed Johnson a
duty of care as a matter of law, and breached said duty of care to
Johnson, exposing Johnson to liability;
b. Northeast failed to proffer and/or prove the contents of the subject
Policy application, thereby failing to extinguish outstanding
questions of fact as to the scope of Northeast’s duty owed to
Johnson as the insurance procurement agent;
c. Northeast failed to proffer any document which would establish
Northeast’s contention that third-party defendant LESTER DAVIS
(hereinafter, “Davis”) submitted the subject Policy’s application to
Northeast’s online portal and/or Northeast’s request for plaintiff
TOWER INSURANCE COMPANY OF NEW YORK
(hereinafter, “Plaintiff”) to bind the Policy;
d. The Policy proffered by Northeast lists Northeast as the insurance
agent upon the subject policy, thereby failing to extinguish
outstanding questions of fact as to whom the insurance
procurement agent was for the subject Policy and whether Davis
was the exclusive insurance procurement agent thereof;
e. Northeast failed to establish what supervisory functions and
controls it exercises over Davis customarily and with respect to the
subject Policy;
f. By virtue of the foregoing, material outstanding facts and
documents remain currently unavailable to Johnson essential to her
defense of the instant motion, requiring a continuance pursuant to
CPLR § 3212(f); and
g. Upon such other and further grounds as this Court deems just and
proper.
FACTUAL BACKGROUND
3. Johnson hereby respectfully refers to and incorporates by reference the entirety of
the factual background set forth in Johnson’s Third-Party Verified Complaint dated February 8th,
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2017, annexed to the Affirmation in Support of Ali R. Jaffery, Esq. dated September 10th, 2019
(hereinafter, “Jaffery Aff.”) as “Exhibit F”. See NYSCEF Dkt. 200.1
4. This action arises out of an action for personal injuries against Johnson due to a
slip and fall by the herein co-defendant YVETTE BRANTLEY, who is the plaintiff in an
underlying action against Johnson, which is captioned as Yvette Brantley v. Typhyne Johnson,
filed in the Supreme Court of the State of New York, County of Bronx, and bearing Index No.
26276/2016E (hereinafter, “Underlying Action”). See generally, NYSCEF Dkt. Index No.
26276/2016E.
5. Since approximately December of 1991, Johnson has owned realty located at the
address 3553 Boller Avenue, Bronx, New York 10466 (hereinafter, the “Premises”). See Johnson
Affidavit dated September 18th, 2019 annexed hereto as “Exhibit A”, at ¶ 3.
6. On or around October 22nd, 2002, Johnson secured a letter of commitment from
HSBC, wherein HSBC agreed to consolidate and refinance the existing mortgages upon the
Premises and become the mortgagee of the Premises on November 29th, 2002 by and through the
execution of the consolidation and refinance agreement and delivery of a mortgage to HSBC
(hereinafter, the “Security Instrument”). See NYSCEF Dkt. No. 30; see Ex. A, at ¶ 4; see HSBC
Mortgage Commitment Letter dated October 22nd, 2002, annexed hereto as “Exhibit B”.
7. By and through the Security Instrument, HSBC was named a mortgagee on all
liability policies on the Premises. Id.; see also Tower Policy, annexed to the Jaffery Aff., as Ex.
E. Since October 22nd, 2002, HSBC had actual knowledge that Johnson never resided at the
Premises, and that the Premises was a “Non-Owner Occupied” three family building. Id.
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Pursuant to CPLR § 105(u), a verified pleading may be utilized as an affidavitwhenever the latteris
required. See CPLR § 105(u). Moreover, capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in Johnson’s Verified Third-Party Complaint dated February 8th, 2017. See NYSCEF Dkt. 200.
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8. Sometime thereafter, Allstate, the then-existing Premises liability policy carrier,
dropped Johnson’s liability coverage for reasons unknown to Johnson. See Ex. A, at ¶ 5. Shortly
thereafter, HSBC was notified of the lapse in coverage by Allstate as HSBC was a named
mortgagee under the Allstate policy. See Ex. A, at ¶ 5.
9. Sometime after October 22nd, 2002, in full accordance with the Security
Instrument, HSBC immediately acquired liability coverage on the Premises by contacting, inter
alia, Davis. See Ex. A, at ¶ 6. Pursuant to the Security Instrument, HSBC provided or conveyed
information regarding the ownership, occupancy, and other such declarations regarding the
Premises to, inter alia, Northeast and/or Davis. Id., at ¶ 7.
10. Conversely, Johnson never provided or conveyed declarations to Northeast that
the Premises was a three (3) family owner-occupied residence regarding the ownership and/or
occupancy of the Premises for the purposes of obtaining any insurance policy upon the Premises,
or subsequent renewals thereof, subsequent to the cancelation of the Allstate insurance policy.
Id., at ¶ 8. Nor did Johnson direct or instruct Northeast and/or Davis to secure a three (3) family
owner-occupied insurance policy upon the Premises. Id., at ¶ 9.
11. On or before December 8th, 2014, pursuant to the Security Instrument, HSBC
contacted Northeast and/or Davis regarding obtaining an insurance policy upon the Premises for
a policy period of December 8th,2014, commencing at 12:01 A.M. and expiring on December
8th, 2015. Id., at ¶ 10.
12. On or before December 8th, 2014, pursuant to the Security Instrument, HSBC
obtained Tower Insurance Company of New York Policy No. DPP2652045 (hereinafter, the
“Policy”) upon the Premises through, inter alia, Northeast and/or Davis, for a policy period of
December 8th, 2014, commencing at 12:01 A.M. and expiring on December 8th, 2015. Id., at ¶
11.
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13. Such declarations under the Policy state that: the covered location is a “residence
premises”; the “insured location” is at the Premises; and the Policy as a three (3) family “owner-
occupied three-family” home. See Jaffery Aff., at Ex. E.
14. Such declarations under the Policy were conveyed solely by HSBC, to Northeast
and/or Davis; no such declarations thereof were conveyed by Johnson. See Ex. A, at ¶ 8.
WHEREFORE, for all of the reasons stated in Johnson’s Memorandum of Law in
Opposition to summary judgment pursuant to CPLR § 3212 et seq., and in Support of Johnson’s
cross-motion for a Continuance, pursuant to CPLR § 3212(f), this Court should issue an Order
denying third-party defendant Northeast’s motion for summary judgment in-full, or in the
alternative, grant Johnson’s cross-motion for a Continuance, as to allow Johnson to ascertain
facts currently unavailable to her by conducting disclosure, and for such other and further relief
as this Court may deem just and proper.
Dated: New York, New York
September 18th, 2019
Respectfully submitted,
SUTTON SACHS MEYER PLLC
Attorneys for Defendant/Third-Party Plaintiff
Zachary G. Meyer, Esq.
Zachary G. Meyer, Esq.
14 Penn Plaza, Suite 1315
New York, NY 10122
t. (212) 480-4357
e. Zachary@ssm.law
To: PHILLIPS LYTLE LLP
340 Madison Avenue, 17th Floor
New York, NY 10173
Attorneys for HSBC
TRAUB LIEBERMAN STRAUS
& SHREWSBERRY LLP
Seven Skyline Dr.
Hawthorne, NY 10532
Attorneys for Northeast Agencies, Inc.
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WOOD SMITH HENNING & BERMAN LLP
685 Third Avenue, 18th Floor
New York, NY 10017
Attorneys for Lester Davis
LAW OFFICE OF JAMES J. CROTEAU
10 Lanidex Plaza West, Suite 130A
Parsippany, NJ 07054
Attorneys for Plaintiff
L/O Alan S. Friedman, Esq.
875 Avenue of the Americas, Suite 1802
New York, NY 10001
Attorney for Co-Defendant Brantley
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NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 43
Index No.: 150210/2017
TOWER INSURANCE COMPANY OF NEW YORK,
Plaintiff,
-against-
TYPHYNE JOHNSON, and YVETTE BRANTLEY,
Defendants.
TYPHYNE JOHNSON,
Third-Party Plaintiff,
-against-
HSBC MORTGAGE CORPORATION (USA), NORTHEAST AGENCIES, INC.,
and LESTER DAVIS,
Third-Party Defendants
AFFIRMATION IN OPPOSITION & IN SUPPORT OF CROSS-MOTION
SUTTON SACHS MEYER PLLC
14 Penn Plaza, Suite 1315
New York, NY 10122
Tel.: (212) 480-4357
Attorneys for Defendant/Third-Party Plaintiff
Pursuant to 22 NYCRR § 130-1.1, et seq., the undersigned, an attorney admitted to practice law before the Courts of
the State of New York, hereby certified that, upon information and belief, and upon a reasonable inquiry thereto, the
contentions contained in the annexed documents are not frivolous.
By: /s/ Zachary G. Meyer, Esq.
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FILED: NEW YORK COUNTY CLERK 09/20/2019 10:37 AM INDEX NO. 150210/2017 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 43 TOWER INSURANCE COMPANY OF NEW Index No.: 150210/2017 YORK, MSQ No.: 006 Hon. Robert Reed, J.S.C. Plaintiff, -against- AFFIRMATION IN OPPOSITION & IN SUPPORT OF CROSS-MOTION TYPHYNE JOHNSON, and YVETTE BRANTLEY, ORAL ARGUMENT Defendants. REQUESTED TYPHYNE JOHNSON, Third-Party Plaintiff, -against- HSBC MORTGAGE CORPORATION (USA), NORTHEAST AGENCIES, INC., and LESTER DAVIS, Third-Party Defendants. ZACHARY G. MEYER, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following upon information and belief: 1. I am a partner in the law firm SUTTON SACHS MEYER PLLC, attorneys for defendant/third-party plaintiff TYPHYNE JOHNSON (hereinafter, “Johnson”) in the above- captioned matter, and as such, I am fully familiar with the facts and circumstances therein based upon my review of the file maintained by our office, as well as my conversations with the client, and a reasonable investigation into the matter. 2. I respectfully submit this Affirmation in Opposition to third-party defendant NORTHEAST AGENCIES, INC.’s (hereinafter, “Northeast”) motion for an Order, pursuant to 1 1 of 7 FILED: NEW YORK COUNTY CLERK 09/20/2019 10:37 AM INDEX NO. 150210/2017 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019 CPLR § 3212, et seq., denying Northeast summary judgment, and in Support of Johnson’s cross- motion for an Order, pursuant to CPLR § 3211(f), granting Johnson a Continuance of the instant motion as to ascertain facts currently unavailable to Johnson, which are respectfully set forth in greater detail in Johnson’s accompanying Memorandum of Law, upon the following grounds: a. Northeast, as the insurance procurement agent, owed Johnson a duty of care as a matter of law, and breached said duty of care to Johnson, exposing Johnson to liability; b. Northeast failed to proffer and/or prove the contents of the subject Policy application, thereby failing to extinguish outstanding questions of fact as to the scope of Northeast’s duty owed to Johnson as the insurance procurement agent; c. Northeast failed to proffer any document which would establish Northeast’s contention that third-party defendant LESTER DAVIS (hereinafter, “Davis”) submitted the subject Policy’s application to Northeast’s online portal and/or Northeast’s request for plaintiff TOWER INSURANCE COMPANY OF NEW YORK (hereinafter, “Plaintiff”) to bind the Policy; d. The Policy proffered by Northeast lists Northeast as the insurance agent upon the subject policy, thereby failing to extinguish outstanding questions of fact as to whom the insurance procurement agent was for the subject Policy and whether Davis was the exclusive insurance procurement agent thereof; e. Northeast failed to establish what supervisory functions and controls it exercises over Davis customarily and with respect to the subject Policy; f. By virtue of the foregoing, material outstanding facts and documents remain currently unavailable to Johnson essential to her defense of the instant motion, requiring a continuance pursuant to CPLR § 3212(f); and g. Upon such other and further grounds as this Court deems just and proper. FACTUAL BACKGROUND 3. Johnson hereby respectfully refers to and incorporates by reference the entirety of the factual background set forth in Johnson’s Third-Party Verified Complaint dated February 8th, 2 2 of 7 FILED: NEW YORK COUNTY CLERK 09/20/2019 10:37 AM INDEX NO. 150210/2017 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019 2017, annexed to the Affirmation in Support of Ali R. Jaffery, Esq. dated September 10th, 2019 (hereinafter, “Jaffery Aff.”) as “Exhibit F”. See NYSCEF Dkt. 200.1 4. This action arises out of an action for personal injuries against Johnson due to a slip and fall by the herein co-defendant YVETTE BRANTLEY, who is the plaintiff in an underlying action against Johnson, which is captioned as Yvette Brantley v. Typhyne Johnson, filed in the Supreme Court of the State of New York, County of Bronx, and bearing Index No. 26276/2016E (hereinafter, “Underlying Action”). See generally, NYSCEF Dkt. Index No. 26276/2016E. 5. Since approximately December of 1991, Johnson has owned realty located at the address 3553 Boller Avenue, Bronx, New York 10466 (hereinafter, the “Premises”). See Johnson Affidavit dated September 18th, 2019 annexed hereto as “Exhibit A”, at ¶ 3. 6. On or around October 22nd, 2002, Johnson secured a letter of commitment from HSBC, wherein HSBC agreed to consolidate and refinance the existing mortgages upon the Premises and become the mortgagee of the Premises on November 29th, 2002 by and through the execution of the consolidation and refinance agreement and delivery of a mortgage to HSBC (hereinafter, the “Security Instrument”). See NYSCEF Dkt. No. 30; see Ex. A, at ¶ 4; see HSBC Mortgage Commitment Letter dated October 22nd, 2002, annexed hereto as “Exhibit B”. 7. By and through the Security Instrument, HSBC was named a mortgagee on all liability policies on the Premises. Id.; see also Tower Policy, annexed to the Jaffery Aff., as Ex. E. Since October 22nd, 2002, HSBC had actual knowledge that Johnson never resided at the Premises, and that the Premises was a “Non-Owner Occupied” three family building. Id. 1 Pursuant to CPLR § 105(u), a verified pleading may be utilized as an affidavitwhenever the latteris required. See CPLR § 105(u). Moreover, capitalized terms not otherwise defined herein shall have the meaning ascribed to them in Johnson’s Verified Third-Party Complaint dated February 8th, 2017. See NYSCEF Dkt. 200. 3 3 of 7 FILED: NEW YORK COUNTY CLERK 09/20/2019 10:37 AM INDEX NO. 150210/2017 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019 8. Sometime thereafter, Allstate, the then-existing Premises liability policy carrier, dropped Johnson’s liability coverage for reasons unknown to Johnson. See Ex. A, at ¶ 5. Shortly thereafter, HSBC was notified of the lapse in coverage by Allstate as HSBC was a named mortgagee under the Allstate policy. See Ex. A, at ¶ 5. 9. Sometime after October 22nd, 2002, in full accordance with the Security Instrument, HSBC immediately acquired liability coverage on the Premises by contacting, inter alia, Davis. See Ex. A, at ¶ 6. Pursuant to the Security Instrument, HSBC provided or conveyed information regarding the ownership, occupancy, and other such declarations regarding the Premises to, inter alia, Northeast and/or Davis. Id., at ¶ 7. 10. Conversely, Johnson never provided or conveyed declarations to Northeast that the Premises was a three (3) family owner-occupied residence regarding the ownership and/or occupancy of the Premises for the purposes of obtaining any insurance policy upon the Premises, or subsequent renewals thereof, subsequent to the cancelation of the Allstate insurance policy. Id., at ¶ 8. Nor did Johnson direct or instruct Northeast and/or Davis to secure a three (3) family owner-occupied insurance policy upon the Premises. Id., at ¶ 9. 11. On or before December 8th, 2014, pursuant to the Security Instrument, HSBC contacted Northeast and/or Davis regarding obtaining an insurance policy upon the Premises for a policy period of December 8th,2014, commencing at 12:01 A.M. and expiring on December 8th, 2015. Id., at ¶ 10. 12. On or before December 8th, 2014, pursuant to the Security Instrument, HSBC obtained Tower Insurance Company of New York Policy No. DPP2652045 (hereinafter, the “Policy”) upon the Premises through, inter alia, Northeast and/or Davis, for a policy period of December 8th, 2014, commencing at 12:01 A.M. and expiring on December 8th, 2015. Id., at ¶ 11. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 09/20/2019 10:37 AM INDEX NO. 150210/2017 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019 13. Such declarations under the Policy state that: the covered location is a “residence premises”; the “insured location” is at the Premises; and the Policy as a three (3) family “owner- occupied three-family” home. See Jaffery Aff., at Ex. E. 14. Such declarations under the Policy were conveyed solely by HSBC, to Northeast and/or Davis; no such declarations thereof were conveyed by Johnson. See Ex. A, at ¶ 8. WHEREFORE, for all of the reasons stated in Johnson’s Memorandum of Law in Opposition to summary judgment pursuant to CPLR § 3212 et seq., and in Support of Johnson’s cross-motion for a Continuance, pursuant to CPLR § 3212(f), this Court should issue an Order denying third-party defendant Northeast’s motion for summary judgment in-full, or in the alternative, grant Johnson’s cross-motion for a Continuance, as to allow Johnson to ascertain facts currently unavailable to her by conducting disclosure, and for such other and further relief as this Court may deem just and proper. Dated: New York, New York September 18th, 2019 Respectfully submitted, SUTTON SACHS MEYER PLLC Attorneys for Defendant/Third-Party Plaintiff Zachary G. Meyer, Esq. Zachary G. Meyer, Esq. 14 Penn Plaza, Suite 1315 New York, NY 10122 t. (212) 480-4357 e. Zachary@ssm.law To: PHILLIPS LYTLE LLP 340 Madison Avenue, 17th Floor New York, NY 10173 Attorneys for HSBC TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP Seven Skyline Dr. Hawthorne, NY 10532 Attorneys for Northeast Agencies, Inc. 5 5 of 7 FILED: NEW YORK COUNTY CLERK 09/20/2019 10:37 AM INDEX NO. 150210/2017 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019 WOOD SMITH HENNING & BERMAN LLP 685 Third Avenue, 18th Floor New York, NY 10017 Attorneys for Lester Davis LAW OFFICE OF JAMES J. CROTEAU 10 Lanidex Plaza West, Suite 130A Parsippany, NJ 07054 Attorneys for Plaintiff L/O Alan S. Friedman, Esq. 875 Avenue of the Americas, Suite 1802 New York, NY 10001 Attorney for Co-Defendant Brantley 6 6 of 7 FILED: NEW YORK COUNTY CLERK 09/20/2019 10:37 AM INDEX NO. 150210/2017 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 09/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 43 Index No.: 150210/2017 TOWER INSURANCE COMPANY OF NEW YORK, Plaintiff, -against- TYPHYNE JOHNSON, and YVETTE BRANTLEY, Defendants. TYPHYNE JOHNSON, Third-Party Plaintiff, -against- HSBC MORTGAGE CORPORATION (USA), NORTHEAST AGENCIES, INC., and LESTER DAVIS, Third-Party Defendants AFFIRMATION IN OPPOSITION & IN SUPPORT OF CROSS-MOTION SUTTON SACHS MEYER PLLC 14 Penn Plaza, Suite 1315 New York, NY 10122 Tel.: (212) 480-4357 Attorneys for Defendant/Third-Party Plaintiff Pursuant to 22 NYCRR § 130-1.1, et seq., the undersigned, an attorney admitted to practice law before the Courts of the State of New York, hereby certified that, upon information and belief, and upon a reasonable inquiry thereto, the contentions contained in the annexed documents are not frivolous. By: /s/ Zachary G. Meyer, Esq. 7 of 7