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FILED: SUFFOLK COUNTY CLERK 08/02/2023 03:07 PM INDEX NO. 608053/2021
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/02/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
HOME LINE PROPERTIES OF ISLIP Index No.: 608053/2021
TERRACE, LLC., RAFAEL AVGI AND
RACHEL AVGI, Assigned to
Justice Hon. Joseph A. Santorelli
Plaintiff, IAS Part 10
-against- AFFIRMATION IN SUPPORT OF
DEFENDANT KINGSTONE
KINGSTONE INSURANCE COMPANY, K. INSURANCE COMPANY'S
BELL & ASSOCIATES, INC. AND KEN MOTION TO REARGUE AND/OR
BELL, INDIVIDUALLY, STAY THIS MATTER PENDING
APPEAL
Defendant.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
ERIC M. WAHRBURG, an attorney admitted to practice before the Courts of this State
affirms the truth of the following, under the penalties of perjury pursuant to CPLR 2106:
1. I am a Partner of the law firm of Manning & Kass, Ellrod, Ramirez, Trester, LLP,
attorneys for defendant KINGSTONE INSURANCE COMPANY (hereinafter "Kingstone" or
"Defendant") in this matter. As such, I am fully familiar with this matter.
2. This Affirmation is respectfully submitted in support of the instant application
seeking an Order (1) granting Defendant Kingstone leave to reargue its prior motion; (2) upon the
grant of leave to reargue, for an Order pursuant to CPLR §3212 granting Kingstone summary
judgment against Plaintiffs, Home Line Properties of Islip Terrace, LLC., Rafael Avgi and Rachel
Avgi, dismissing Plaintiffs’ complaint in its entirety, with prejudice; and (3) such other relief as
the Court deems just and proper.
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3. Alternatively, this affirmation is in support of the instant application for an Order,
pursuant to CPLR §2201, staying this matter pending Kingstone's appeal of this Court's prior order.
TIMELINESS OF MOTION TO REARGUE
4. The Order for which leave to reargue is sought was issued by Hon. Joseph A.
Santorelli, J.S.C. on June 29, 2023, and was served/filed with Notice of Entry on July 7, 2023. A
copy of the Order with Notice of Entry is Annexed hereto as Exhibit "A".
5. It is respectfully submitted that the filing of this motion on August 1, 2023 is timely
as a matter of law.
PROCEDURAL HISTORY
6. On February 28, 2023, Defendant Kingstone filed their Motion for Summary
Judgment (the "Underlying Motion"). On March 1, 2023, Defendant Kingstone filed their Notice
of Motion (Amended). A copy of this motion, with all supporting Affirmations, Memorandum and
Exhibits, is annexed hereto as Exhibit "B". References to Exhibits in this Affirmation and the
concurrently filed Memorandum of Law, to the extent such references exist, are lettered
consistently with those submitted in the Underlying Motion.
7. On May 3, 2023, Plaintiffs filed their Cross-Motion for Summary Judgment. A
copy of this motion, with all supporting Affirmations, Memorandum and Exhibits, is annexed
hereto as Exhibit "C".
8. On May 17, 2023, Kingstone served their Memorandum of Law in Response to
Plaintiff's Opposition, In Further Support of Defendant's Motion for Summary Judgment, and in
Opposition to Plaintiff's Cross-Motion for Summary Judgment. A copy of this Memorandum is
annexed hereto as Exhibit "D".
9. On May 26, 2023, Plaintiff's served their Memorandum of Law in Reply to
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Defendant's Opposition to Cross Motion. A copy of this memorandum is annexed here to Exhibit
"E".
10. On August 2, 2023, Kingstone filed and served their notice of appeal of this
decision to the Appellate Division, Second Department. A copy of this notice of appeal is attached
hereto as Exhibit "F".
STANDARDS FOR A MOTION TO REARGUE
11. Pursuant to CPLR §2221(d) concerning motions effecting a prior Order, a motion
to reargue requires that: (1) it shall be identified specifically as such; (2) it shall be based upon
matters of fact or law allegedly overlooked or misapprehended by the Court in determining the
prior motion, but; (3) it shall not include any matters of fact not offered on the prior motion.
12. The instant application has been identified specifically as a motion to reargue.
13. The instant application does not include any matters of fact not offered on the prior
motion.
14. It is respectfully submitted that the court overlooked and misapprehended matters
of fact and law, including controlling case law of the Court of Appeals and the Appellate
Departments, including the Second Department in which this action is pending.
THIS HONORABLE COURT'S PRIOR ORDER
15. The Hon. Joseph A. Santorelli issued the prior Order of this Court. This Order was
dated June 27, 2023 and entered on July 7, 2023. In this Order, Judge Santorelli denied both
Kingstone's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment.
Judge Santorelli's prior Order stated, in pertinent part, as follows:
Based upon a review of the motion papers the Court concludes that the defendant has
failed to establish entitlement to judgment as a matter of law and that there are material
and triable issues of fact presented as to whether the "reservation of rights" letter that was
sent to the plaintiff was defective. Thus the motion for summary judgment is denied.
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Even assuming, arguendo that the defendant sustained its initial burden the plaintiffs
proffered sufficient facts to necessitate a trial.
16. In so holding, the Court cites to no authority in support of its determinations, and
further fails to recognize that the Courts of this state routinely determine the sufficiency of a
reservation of rights, or other letters concerning the availability of coverage as a matter of law.
This Order further misapprehends the facts of this case and fails to recognize the contractual
requirements freely entered into between the parties regarding the requirement to appear for an
examination under oath. Finally, this court cites to NY Ins. Law § 3420(d) despite the fact that that
section of the insurance law is solely at issue when an insurer is disclaiming liability for a death
or other bodily injury, which were not present in the claim presented by Plaintiff to Kingstone.
17. As set forth in further detail in the concurrently submitted Memorandum of Law,
these overlooked and misapprehended matters of fact and law are sufficient to warrant reargument
of Kingstone's motion for summary judgment in this matter.
ALTERNATIVELY, THIS MATTER SHOULD BE STAYED, PENDING APPEAL
18. Alternatively, and as more fully briefed in the accompanying memorandum of law,
this Court should grant Kingstone's motion, pursuant to CPLR § 2201, for a stay of this action
pending a determination on Kingstone's appeal of this Court's prior order, as Kingstone has
established that (1) this appeal has merit, (2) no party will be prejudiced by the issuance of this
stay, and (3) this stay is not designed merely to delay these proceedings.
CONCLUSION
19. For the foregoing reasons, this Court should, pursuant to CPLR § 2221, grant
Kingstone's motion for leave to reargue, and, upon reargument, pursuant to CPLR §3212 grant
Kingstone summary judgment against Plaintiffs, Home Line Properties of Islip Terrace, LLC.,
Rafael Avgi and Rachel Avgi, dismissing Plaintiffs’ complaint in its entirety, with prejudice.
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20. Alternatively, should Kingstone's motion to reague be denied, this Court should
grant Kingstone's motion, pursuant to CPLR § 2201, for a stay of this action pending a
determination on Kingstone's appeal of this Court's prior order.
WHEREFORE, for the reasons set forth above, Kingstone respectfully requests that this
Court, pursuant to CPLR § 2221, grant Kingstone's motion for leave to reargue, and, upon
reargument, pursuant to CPLR §3212 grant Kingstone summary judgment against Plaintiffs, Home
Line Properties of Islip Terrace, LLC., Rafael Avgi and Rachel Avgi, dismissing Plaintiffs’
complaint in its entirety, with prejudice. Alternatively, this Court should grant Kingstone's motion,
pursuant to CPLR § 2201, for a stay of this action pending a determination on Kingstone's appeal
of this Court's prior order. Finally, this Court should grant such other and further relief is this Court
deems just and proper.
Dated: New York, New York
August 2, 2023 MANNING & KASS, ELLROD,
RAMIREZ, TRESTER, LLP
/s/ Eric Wahrburg
By: Eric Wahrburg, Esq.
100 Wall Street, Ste 700
New York, New York 10005
(212) 858-7769
Attorneys for KINGSTONE INSURANCE
COMPANY
To: The Law Office of Thomas Tona, P.C.
Attorneys for Plaintiffs
152 Islip Avenue, Suite 18
Islip, New York 11751
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FILED: SUFFOLK COUNTY CLERK 08/02/2023 03:07 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/02/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK HOME LINE PROPERTIES OF ISLIP Index No.: 608053/2021 TERRACE, LLC., RAFAEL AVGI AND RACHEL AVGI, Assigned to Justice Hon. Joseph A. Santorelli Plaintiff, IAS Part 10 -against- AFFIRMATION IN SUPPORT OF DEFENDANT KINGSTONE KINGSTONE INSURANCE COMPANY, K. INSURANCE COMPANY'S BELL & ASSOCIATES, INC. AND KEN MOTION TO REARGUE AND/OR BELL, INDIVIDUALLY, STAY THIS MATTER PENDING APPEAL Defendant. STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) ERIC M. WAHRBURG, an attorney admitted to practice before the Courts of this State affirms the truth of the following, under the penalties of perjury pursuant to CPLR 2106: 1. I am a Partner of the law firm of Manning & Kass, Ellrod, Ramirez, Trester, LLP, attorneys for defendant KINGSTONE INSURANCE COMPANY (hereinafter "Kingstone" or "Defendant") in this matter. As such, I am fully familiar with this matter. 2. This Affirmation is respectfully submitted in support of the instant application seeking an Order (1) granting Defendant Kingstone leave to reargue its prior motion; (2) upon the grant of leave to reargue, for an Order pursuant to CPLR §3212 granting Kingstone summary judgment against Plaintiffs, Home Line Properties of Islip Terrace, LLC., Rafael Avgi and Rachel Avgi, dismissing Plaintiffs’ complaint in its entirety, with prejudice; and (3) such other relief as the Court deems just and proper. 1 of 5 FILED: SUFFOLK COUNTY CLERK 08/02/2023 03:07 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/02/2023 3. Alternatively, this affirmation is in support of the instant application for an Order, pursuant to CPLR §2201, staying this matter pending Kingstone's appeal of this Court's prior order. TIMELINESS OF MOTION TO REARGUE 4. The Order for which leave to reargue is sought was issued by Hon. Joseph A. Santorelli, J.S.C. on June 29, 2023, and was served/filed with Notice of Entry on July 7, 2023. A copy of the Order with Notice of Entry is Annexed hereto as Exhibit "A". 5. It is respectfully submitted that the filing of this motion on August 1, 2023 is timely as a matter of law. PROCEDURAL HISTORY 6. On February 28, 2023, Defendant Kingstone filed their Motion for Summary Judgment (the "Underlying Motion"). On March 1, 2023, Defendant Kingstone filed their Notice of Motion (Amended). A copy of this motion, with all supporting Affirmations, Memorandum and Exhibits, is annexed hereto as Exhibit "B". References to Exhibits in this Affirmation and the concurrently filed Memorandum of Law, to the extent such references exist, are lettered consistently with those submitted in the Underlying Motion. 7. On May 3, 2023, Plaintiffs filed their Cross-Motion for Summary Judgment. A copy of this motion, with all supporting Affirmations, Memorandum and Exhibits, is annexed hereto as Exhibit "C". 8. On May 17, 2023, Kingstone served their Memorandum of Law in Response to Plaintiff's Opposition, In Further Support of Defendant's Motion for Summary Judgment, and in Opposition to Plaintiff's Cross-Motion for Summary Judgment. A copy of this Memorandum is annexed hereto as Exhibit "D". 9. On May 26, 2023, Plaintiff's served their Memorandum of Law in Reply to 2 2 of 5 FILED: SUFFOLK COUNTY CLERK 08/02/2023 03:07 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/02/2023 Defendant's Opposition to Cross Motion. A copy of this memorandum is annexed here to Exhibit "E". 10. On August 2, 2023, Kingstone filed and served their notice of appeal of this decision to the Appellate Division, Second Department. A copy of this notice of appeal is attached hereto as Exhibit "F". STANDARDS FOR A MOTION TO REARGUE 11. Pursuant to CPLR §2221(d) concerning motions effecting a prior Order, a motion to reargue requires that: (1) it shall be identified specifically as such; (2) it shall be based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion, but; (3) it shall not include any matters of fact not offered on the prior motion. 12. The instant application has been identified specifically as a motion to reargue. 13. The instant application does not include any matters of fact not offered on the prior motion. 14. It is respectfully submitted that the court overlooked and misapprehended matters of fact and law, including controlling case law of the Court of Appeals and the Appellate Departments, including the Second Department in which this action is pending. THIS HONORABLE COURT'S PRIOR ORDER 15. The Hon. Joseph A. Santorelli issued the prior Order of this Court. This Order was dated June 27, 2023 and entered on July 7, 2023. In this Order, Judge Santorelli denied both Kingstone's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. Judge Santorelli's prior Order stated, in pertinent part, as follows: Based upon a review of the motion papers the Court concludes that the defendant has failed to establish entitlement to judgment as a matter of law and that there are material and triable issues of fact presented as to whether the "reservation of rights" letter that was sent to the plaintiff was defective. Thus the motion for summary judgment is denied. 3 3 of 5 FILED: SUFFOLK COUNTY CLERK 08/02/2023 03:07 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/02/2023 Even assuming, arguendo that the defendant sustained its initial burden the plaintiffs proffered sufficient facts to necessitate a trial. 16. In so holding, the Court cites to no authority in support of its determinations, and further fails to recognize that the Courts of this state routinely determine the sufficiency of a reservation of rights, or other letters concerning the availability of coverage as a matter of law. This Order further misapprehends the facts of this case and fails to recognize the contractual requirements freely entered into between the parties regarding the requirement to appear for an examination under oath. Finally, this court cites to NY Ins. Law § 3420(d) despite the fact that that section of the insurance law is solely at issue when an insurer is disclaiming liability for a death or other bodily injury, which were not present in the claim presented by Plaintiff to Kingstone. 17. As set forth in further detail in the concurrently submitted Memorandum of Law, these overlooked and misapprehended matters of fact and law are sufficient to warrant reargument of Kingstone's motion for summary judgment in this matter. ALTERNATIVELY, THIS MATTER SHOULD BE STAYED, PENDING APPEAL 18. Alternatively, and as more fully briefed in the accompanying memorandum of law, this Court should grant Kingstone's motion, pursuant to CPLR § 2201, for a stay of this action pending a determination on Kingstone's appeal of this Court's prior order, as Kingstone has established that (1) this appeal has merit, (2) no party will be prejudiced by the issuance of this stay, and (3) this stay is not designed merely to delay these proceedings. CONCLUSION 19. For the foregoing reasons, this Court should, pursuant to CPLR § 2221, grant Kingstone's motion for leave to reargue, and, upon reargument, pursuant to CPLR §3212 grant Kingstone summary judgment against Plaintiffs, Home Line Properties of Islip Terrace, LLC., Rafael Avgi and Rachel Avgi, dismissing Plaintiffs’ complaint in its entirety, with prejudice. 4 4 of 5 FILED: SUFFOLK COUNTY CLERK 08/02/2023 03:07 PM INDEX NO. 608053/2021 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/02/2023 20. Alternatively, should Kingstone's motion to reague be denied, this Court should grant Kingstone's motion, pursuant to CPLR § 2201, for a stay of this action pending a determination on Kingstone's appeal of this Court's prior order. WHEREFORE, for the reasons set forth above, Kingstone respectfully requests that this Court, pursuant to CPLR § 2221, grant Kingstone's motion for leave to reargue, and, upon reargument, pursuant to CPLR §3212 grant Kingstone summary judgment against Plaintiffs, Home Line Properties of Islip Terrace, LLC., Rafael Avgi and Rachel Avgi, dismissing Plaintiffs’ complaint in its entirety, with prejudice. Alternatively, this Court should grant Kingstone's motion, pursuant to CPLR § 2201, for a stay of this action pending a determination on Kingstone's appeal of this Court's prior order. Finally, this Court should grant such other and further relief is this Court deems just and proper. Dated: New York, New York August 2, 2023 MANNING & KASS, ELLROD, RAMIREZ, TRESTER, LLP /s/ Eric Wahrburg By: Eric Wahrburg, Esq. 100 Wall Street, Ste 700 New York, New York 10005 (212) 858-7769 Attorneys for KINGSTONE INSURANCE COMPANY To: The Law Office of Thomas Tona, P.C. Attorneys for Plaintiffs 152 Islip Avenue, Suite 18 Islip, New York 11751 5 5 of 5