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WALSH ROBERTS & GRACE LLe
MARK P. DELLA POSTA AT LAW GERALD GRACE, JR.
ATTORNEYS
KEITH N. BOND OF COUNSEL
ROBERT P. GOODWIN
JOSEPH H. EMMINGER, JR. JAMES R. WALSH
THOMAs E. ROBERTS
RETlRED
March 25, 2021
Honorable Emilio Colaiacovo, J.S.C.
Erie Supreme Court - via NYSCEF & e-mail - aeqarcia@nycourts.qov
County
25 Delaware Avenue, Part 24 7
Buffalo, New York 14202
Re: Utica National Insurance, as Subrogee of Springville-Griffith
Institute Central School District vs. Arric Corp., et al
Index No. : 809591/2020
Our File No. : 8557
___________
Dear Justice Colaiacovo:
Our firm represents Arric Corp. ("Arric") in the above action. Both Arric and Guard
Contracting Corp. ("Guard") filed pre-Answer Motions to Dismiss pursuant to CPLR §3211, but did also
request Summary Judgment relief pursuant to CPLR §3212. These motions were filed on February
3, 2021. I have conferred with Richard Clack, Esq., attorney for Guard, and I am submitting this letter
on behalf of both Arric and Guard.
Unfortunately, the motions by Arric and Guard were drafted prior to February 1, 2021,
but filed just two days after the effective date of 22 NYCRR 202.8-g, which section requires a
Statement of Undisputed Facts for Summary Judgment motions. Late yesterday, I communicated
with the plaintiff's attorney, Kris Lawrence, and he acknowledges that 22 NYCRR 202.8-g does not
apply to CPLR §3211 Motions to Dismiss.
From a practical standpoint, the facts in this case are fairly straight-forward and there
appears to be little, if any, dispute as to the relevant and material facts regarding the identity and
relationship of the contracting parties, as well as the terms and conditions of the various contracts,
including the Subrogation Waiver Provision.
To the extent that the Court decides to treat the motions filed by Arric and Guard as
seeking CPLR §3212 summary judgment relief, and in an abundance of caution, Arric and Guard
hereby adopt the Statement of Material Facts filed on March 24, 2021, on behalf of Concept
Construction Corp. ("Concept"), by its counsel, Elizabeth A. Kraengel, Esq., of Duke, Holzman,
Photiadis & Gresens LLP. We respectfully request that the Court consider Concept's Statement of
Material Facts as having been submitted by Arric and Guard and as if more fully set forth and recited
herein.
400 RAND BUILDING • 14 LAFAYETTE SQUARE • BUFFALO, NY 142O3-1904
(716) 856-1636 • NIAGARA FALLS: (716) 284-O133
FAX: (716) 856-1610 (NOT FOR SERVICE)
WWW.WALSHROBERTSGRACE.COM
Honorable Emilio Colaiacovo, J.S.C.
March 25, 2021
Page Two
In the alternative, if the Court does not feel comfortable allowing submission in this format,
we respectfully request an adjournment by the Court to the Court's next available motion date, so that
Arric and Guard can submitseparate Statements of Material Facts, which will be identical in all respects
to the Statement of Facts submitted by Concept.
Respectfully submitted,
MDP/jmh MARK P. DELLA POSTA
cc: Kris E. Lawrence, Esq.
Mura & Storm, P.C. - via NYSCEF & e-mail - kris.Iawreilc é@jnuralaw.com
Elizabeth A. Kraengel, Esq.
Duke, Photiadis & Gresens LLP - via NYSCEF & e-mail - ekraengel©ci|1pci|aw.com
Holzman,
Richard A. Clack, Esq.
Law Offices of Richard A. Clack - via NYSCEF & e-mail - rcIack@clackfirm.com
Brian Sutter, Esq
Sugarman Law LLP - via NYSCEF & e-mail - bsutter@suqarmanlaw.com
Firm,
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WALSH ROBERTS & GRACE LLe MARK P. DELLA POSTA AT LAW GERALD GRACE, JR. ATTORNEYS KEITH N. BOND OF COUNSEL ROBERT P. GOODWIN JOSEPH H. EMMINGER, JR. JAMES R. WALSH THOMAs E. ROBERTS RETlRED March 25, 2021 Honorable Emilio Colaiacovo, J.S.C. Erie Supreme Court - via NYSCEF & e-mail - aeqarcia@nycourts.qov County 25 Delaware Avenue, Part 24 7 Buffalo, New York 14202 Re: Utica National Insurance, as Subrogee of Springville-Griffith Institute Central School District vs. Arric Corp., et al Index No. : 809591/2020 Our File No. : 8557 ___________ Dear Justice Colaiacovo: Our firm represents Arric Corp. ("Arric") in the above action. Both Arric and Guard Contracting Corp. ("Guard") filed pre-Answer Motions to Dismiss pursuant to CPLR §3211, but did also request Summary Judgment relief pursuant to CPLR §3212. These motions were filed on February 3, 2021. I have conferred with Richard Clack, Esq., attorney for Guard, and I am submitting this letter on behalf of both Arric and Guard. Unfortunately, the motions by Arric and Guard were drafted prior to February 1, 2021, but filed just two days after the effective date of 22 NYCRR 202.8-g, which section requires a Statement of Undisputed Facts for Summary Judgment motions. Late yesterday, I communicated with the plaintiff's attorney, Kris Lawrence, and he acknowledges that 22 NYCRR 202.8-g does not apply to CPLR §3211 Motions to Dismiss. From a practical standpoint, the facts in this case are fairly straight-forward and there appears to be little, if any, dispute as to the relevant and material facts regarding the identity and relationship of the contracting parties, as well as the terms and conditions of the various contracts, including the Subrogation Waiver Provision. To the extent that the Court decides to treat the motions filed by Arric and Guard as seeking CPLR §3212 summary judgment relief, and in an abundance of caution, Arric and Guard hereby adopt the Statement of Material Facts filed on March 24, 2021, on behalf of Concept Construction Corp. ("Concept"), by its counsel, Elizabeth A. Kraengel, Esq., of Duke, Holzman, Photiadis & Gresens LLP. We respectfully request that the Court consider Concept's Statement of Material Facts as having been submitted by Arric and Guard and as if more fully set forth and recited herein. 400 RAND BUILDING • 14 LAFAYETTE SQUARE • BUFFALO, NY 142O3-1904 (716) 856-1636 • NIAGARA FALLS: (716) 284-O133 FAX: (716) 856-1610 (NOT FOR SERVICE) WWW.WALSHROBERTSGRACE.COM Honorable Emilio Colaiacovo, J.S.C. March 25, 2021 Page Two In the alternative, if the Court does not feel comfortable allowing submission in this format, we respectfully request an adjournment by the Court to the Court's next available motion date, so that Arric and Guard can submitseparate Statements of Material Facts, which will be identical in all respects to the Statement of Facts submitted by Concept. Respectfully submitted, MDP/jmh MARK P. DELLA POSTA cc: Kris E. Lawrence, Esq. Mura & Storm, P.C. - via NYSCEF & e-mail - kris.Iawreilc é@jnuralaw.com Elizabeth A. Kraengel, Esq. Duke, Photiadis & Gresens LLP - via NYSCEF & e-mail - ekraengel©ci|1pci|aw.com Holzman, Richard A. Clack, Esq. Law Offices of Richard A. Clack - via NYSCEF & e-mail - rcIack@clackfirm.com Brian Sutter, Esq Sugarman Law LLP - via NYSCEF & e-mail - bsutter@suqarmanlaw.com Firm,