Motion,Ex Parte: Cii Passing Lane, Lp v. William Penn Life Insurance Company Of New York, George T Burke interpleader defendant, Ann Caccia interpleader defendant, Michelle Ginsberg interpleader defendant, Robert Mcgrath interpleader defendant, Wilmington Trust Na interpleader defendant, Cii Passing Lane Lp INTERPLEADER DEFENDANT, Linda Daller, Zachary Ginsberg INTERPLEADER DEFENDANT, Kevin Ginsberg INTERPLEADER DEFENDANT, Joshua Ginsberg INTERPLEADER DEFENDANT

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                                INDEX NO. 602940/2022
NYSCEF DOC. NO. 228                                                     RECEIVED NYSCEF: 04/12/2024




          STATE OF NEW YORK
          SUPREME COURT COUNTY OF NASSAU

          CII PASSING LANE, LP,

                                  Plaintiff,
                -against-

          WILLIAM PENN LIFE INSURANCE COMPANY OF               Hon. James P. McCormack
          NEW YORK,

                                  Defendant.                    Index No. 602940/2022


          WILLIAM PENN LIFE INSURANCE COMPANY OF
          NEW YORK,

                                  Defendant and Interpleader
                                  Plaintiff,
                -against-

          GEORGE T. BURKE, ANN CACCIA, MICHELLE
          GINSBERG, ROBERT MCGRATH, and
          WILMINGTON TRUST N.A., CII PASSING LANE,
          LP, LINDA DALLER, ZACHARY GINSBERG,
          KEVIN GINSBERG, AND JOSHUA GINSBERG,

                                  Interpleader Defendants.




                NOTICE OF MOTION FOR SEVERANCE AND ENTRY OF JUDGMENT




                                                                HARRIS BEACH PLLC
                                                                Attorneys for Plaintiff
                                                                99 Garnsey Road
                                                                Pittsford, New York 14534
                                                                (585) 419-8800




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NYSCEF DOC. NO. 228                                                          RECEIVED NYSCEF: 04/12/2024




          MOTION BY    Plaintiff and Interpleader Defendant CII Passing Lane, LP (“Passing Lane”)
                       and Interpleader Defendant Wilmington Trust, N.A. (“Wilmington Trust”)

          DATE, TIME   May 17, 2024, at 9:30 a.m. at a Motion Term of the Supreme Court of the
          AND PLACE    State of New York, County of Nassau, 100 Supreme Court Drive, Mineola,
                       NY 11501, before the Hon. James P. McCormack, Part 9, or as soon
                       thereafter as counsel can be heard.

          SUPPORTING   Affirmation of Kelly S. Foss, Esq., dated April 12, 2024, together with
          PAPERS       documents incorporated by reference therein under CPLR 2214(c) and
                       Exhibit 1; and

                       Memorandum of Law, dated April 12, 2024.

          RELIEF       An Order:
          REQUESTED
                        i.   Pursuant to CPLR 603 and 3212(e)(1):

                                a. Severing the portion of Passing Lane’s breach of contract
                                   cause of action for which Passing Lane sought, and this Court
                                   awarded, compensatory damages;

                                b. Severing Passing Lane’s request for declaratory judgment, to
                                   which this Court found it was entitled;

                                c. Severing Wilmington Trust’s request for declaratory judgment,
                                   to which this Court found it was entitled;

                                d. Severing Passing Lane’s and Wilmington Trust’s request for
                                   default judgment against Ann Caccia;

                       ii.   Pursuant to CPLR 5012:

                                a. Authorizing Passing Lane to seek immediate entry of judgment
                                   on the severed portion of its breach of contract claim against
                                   Defendant and Interpleader Plaintiff William Penn Life
                                   Insurance Company of New York in the amount of
                                   $934,900.48, plus interest pursuant to CPLR 5002, costs, and
                                   disbursements, as taxed by the Clerk; and

                                b. Authorizing Passing Lane to seek immediate entry of judgment
                                   declaring that Passing Lane (1) is a protected purchaser under
                                   Article 8 of the UCC; (2) acquired its security entitlement in
                                   William Penn Policy Number 0700027740 (the “Policy”) free
                                   of any adverse and/or competing claims to the Policy or its
                                   proceeds; and (3) is entitled to recover, through its securities
                                   intermediary, the remainder of the Policy proceeds free of

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NYSCEF DOC. NO. 228                                                                      RECEIVED NYSCEF: 04/12/2024




                                               adverse claims;

                                            c. Authorizing Wilmington Trust to seek immediate entry of
                                               judgment declaring that Wilmington Trust is a protected
                                               purchaser and protected securities intermediary under Article 8
                                               of the UCC, and that Wilmington Trust therefore: (1) received
                                               the Policy free from adverse claims; and (2) is protected
                                               against adverse claims with respect to any Policy proceeds it
                                               received or receives in its role as securities intermediary; and

                                            d. Authorizing Passing Lane and Wilmington Trust to seek
                                               immediate entry of default judgment against Ann Caccia.

          ANSWERING                Pursuant to CPLR 2214(b), answering affidavits and notice of cross motion,
          PAPERS:                  if any, must be served no later than seven days prior to the return date of
                                   this motion.

          REPLY PAPERS: Pursuant to CPLR 2214(b), reply papers, if any, will be served at least one
                        day prior to the return date of this motion.



          Dated: April 12, 2024                           HARRIS BEACH PLLC



                                                          Kelly S. Foss
                                                          Kaitlin E. O’Brien
                                                          99 Garnsey Road
                                                          Pittsford, New York 14534
                                                          Telephone: (585) 419-8800
                                                          kfoss@harrisbeach.com
                                                          kobrien@harrisbeach.com

                                                          Attorneys for Plaintiff and
                                                          Interpleader Defendant
                                                          CII Passing Lane, LP and
                                                          Interpleader Defendant
                                                          Wilmington Trust, N.A.


          To:      All Counsel of Record (via NYSCEF)




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