Preview
INDEX NO. 161010/2014
NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 11/05/2014
1
.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
wanna nnnenne:
ACE AMERICAN INSURANCE COMPANY,
Index #:
Date Purchased
Petitioner,
NOTICE OF
-against- PETITION
UNDERWRITERS AT LLOYD’S, LONDON,
a/k/a and/or d/b/a LLOYD’S OF LONDON,
Respondent.
sana. ---X
SIRS:
PLEASE TAKE NOTICE, that upon the annexed Petition of ACE AMERICAN
INSURANCE COMPANY, by their attorneys PETROCELLI & CHRISTY, LLP, verified the
24 day of October, 2014, the Arbitration Award of Arbitrator Marcia Sylvester, dated February
25, 2014, and the annexed Exhibits, the undersigned will apply to this Court at an IAS Part
thereof, at the Courthouse, located at 60 Centre Street, Room 130, New York, New York 10007,
on the 25" day of November, 2014, at 9:30 o’clock in the forenoon of that day or as soon
thereafter as counsel may be heard, for an Order pursuant to CPLR §7510, confirming the
Arbitration Award, and directing that judgment be entered thereon, together with applicable
interest, costs, fees and disbursements; and, for such other and further relief as to this Court may
seem just and proper.
PLEASE TAKE FURTHER NOTICE, that any answering or supporting Affidavits, if
any, shall be served upon the undersigned at least seven (7) days prior to the return date herein.
Oe
DATED: Mineola, New York
October 24, 2014
Yours, etc.,
USM teef
MICHAEL R. PETROCELLI
PETROCELLI & CHRISTY, LLP
Attomeys for Petitioner
ACE AMERICAN INSURANCE COMPANY
170 Old Country Road, Suite 611
Mineola, New York 11501
(516) 746-4000
File #: 6145 ACE
TO: Underwriters at Lloyd’s, London (Lloyd’s of London)
The Museum Office Building
25 West 53” Street
14" Floor
New York, New York 10019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
mene nen ene e ne nen en ne nee: Xx
ACE AMERICAN INSURANCE COMPANY,
Index #:
Date Purchased:
Petitioner,
-against- VERIFIED PETITION
UNDERWRITERS AT LLOYD’S, LONDON
a/k/a and/or d/b/a LLOYD’S OF LONDON,
Respondent.
wanes. -X
SIRS:
MICHAEL R. PETROCELLI, an attorney duly licensed to practice law before the Courts
of the State of New York, does hereby affirm the following under penalties of perjury:
1 That I am associated with the firm of Petrocelli & Christy, LLP, attorneys for
petitioner, ACE AMERICAN INSURANCE COMPANY (hereinafter, “ACE”), and as such I am
fully familiar with the facts and circumstances of the within matter based upon the file
maintained by this office.
2 That this application is made pursuant to CPLR §7510, to confirm the Award of
Arbitrator, Marcia Sylvester, of Arbitration Forums, Inc. (hereinafter “AFI’), dated February 25,
2014 (Exhibit “A”).
3 That Respondent, UNDERWRITERS AT LLOYD’S, LONDON, a/k/a, and/or
d/b/a LLOYD’S OF LONDON (hereinafter “LLOYD’S”), was and still is a foreign corporation,
which transacts business in the State of New York.
4 That on April 20, 2009, an accident involving two (2) motor vehicles, occurred at
the exit of the “Satellite Fuel Farm”, at John F. Kennedy International Airport, Queens, New
York. Said accident involved a 2009 Ford Escape, owned by Covenant Aviation Security, LLC,
and operated by their employee, Antonia D. Robinson. The other vehicle involved was a 1997
Peterbilt Truck owned by Allied Aviation Services, and operated by Lyle Spriggs. (See the Port
Authority Motor Vehicle Accident Report annexed hereto as Exhibit “B”).
5 That on April 20, 2009, Petitioner, ACE, afforded Workers’ Compensation
Insurance to Covenant Aviation Security, LLC, and their employees.
6 That upon information and belief, on April 20, 2009, Respondent, LLOYD’S
insured the 1997 Peterbilt Truck owned by Allied Aviation Services.
7. That as a result of said accident, Petitioner ACE’s insured’s employee, Antonia
Robinson, sustained serious and severe personal injuries to various portions of her body,
including her left knee, back and neck. As a result, ACE ultimately paid in excess of
$234,000.00 in Workers’ Compensation benefits. Of that sum, $50,000.00 was paid in lieu of
No-Fault first-party benefits. That as the Peterbilt Truck insured by Respondent weighed in
excess of 80,000 pounds, Petitioner, ACE, is entitled to pursue recovery of said benefits from
LLOYD’S, pursuant to Insurance Law §5105
8 That ACE’s designated representative, Linda Flynn, contacted LLOYD’S third-
party administrator, Peter J. McBreen Associates, Inc., seeking to recover the aforementioned
benefits. Paul McBreen advised Ms. Flynn that “Lloyds of London” was the insurer of the
subject Peterbilt truck.
9 An agreement could not be reached, and Ms. Flynn was left no alternative other
than to seek to resolve the dispute in arbitration. As this Honorable Court is aware, Insurance
Law §5105(b), requires that any such controversies be submitted to mandatory arbitration, with
AFI being the appropriate tribunal.
Bn
10. That on or about September 17, 2010, Petitioner, ACE, timely and properly
commenced Arbitration against LLOYD’S under AFI Docket Number 1068-10676-10-00.
Attached hereto is Exhibit “C”, please find a copy of ACE’s submitted Arbitration Application,
Contentions Sheet and supporting evidence.
11. As the Court will note, ACE submitted evidence in support of their claim that
LLOYD’S insured was liable, as their truck struck Ms. Robinson’s Ford Escape, which was
stopped, as it was exiting the Fuel Farm. ACE submitted the Employer’s Report of Work-
Related Injury/Illness (C-2), the Port Authority Motor Vehicle Accident Report, and the written
and signed statement of Antonia Robinson. Furthermore, ACE submitted documentation in
support of the Workers’ Compensation payments made, including a Payment Ledger, and
Workers Compensation Board Notices of Decision (Exhibit “C”).
12. That on or about January 6, 2011, Respondent, LLOYD’s answered the
Arbitration Demand. Specifically, Maria Fabricatore, of the office of Peter J. McBreen
Associates completed the Arbitration Answer and Contentions Sheet (Exhibit “D”). As the
Court will note, Respondent acknowledged that a liability policy was in effect at the time of loss,
and that coverage had not been denied for the claim. Respondent, LLOYD’S did not submit any
arguments or evidence disputing ACE’s liability or damages claims (LLOYD’S also submitted
an additional Response on May 22, 2013, which again admitted coverage, and did not dispute
ACE’s claims (also attached as part of Exhibit “D”)). However, Respondent did request a one-
year deferment due to Antonia Robinson’s third party litigation which was pending in Supreme
Court, New York County, under Index Number 19998/09.
13. Subsequently, the Arbitration Hearing was deferred on an annual basis on the
anniversary of the filing date, until such time as the third party bodily injury action was resolved.
More recently, an Arbitration Hearing was scheduled for September 17, 2013, and then deferred
to September 23, 2014. However, in the interim, on or about January 9, 2014, Antonia
Robinson’s third party litigation against Allied Aviation was settled for $2,000,000.00.
Accordingly, and in compliance with the AFI’s rules, ACE requested a “deferment challenge”
seeking to advance the Arbitration Hearing date, and submitted proof of the litigation settlement,
including ACE’s “consent letter” and a copy of the Closing Statement (Exhibit “E”). This
tequest was submitted to AFI on January 24, 2014, and on that date, AFI scheduled the
Arbitration Hearing for February 25, 2014. On that same date, AFI created and sent a letter to
LLOYD’S, care of Peter J. McBreen Associates (Exhibit “F”).
14. On February 25, 2014, the Arbitration Hearing went forward as scheduled, before
Arbitrator Marcia Sylvester, at AFI’s New York County hearing location at 90 Broad Street. As
the Court will note, following the Hearing, Arbitrator Sylvester issued an Award against
LLOYD’S in the amount of $50,000.00 (Exhibit “A”). Said Award was published on February
25, 2014, and therefore, the instant application is timely pursuant to CPLR §7510.
15. Following issuance of the Award, Petitioner’s designated representative, Linda
Flynn, of Recovery Services International, forwarded an e-mail to Respondent’s listed
representative, Maria Fabbricatore of Peter J. McBreen Associates, Inc. Ms. Fabbricatore then
directed Ms. Flynn to contact their counsel, Kenneth Gormley, Esq., of the firm Locke, Lorde,
Bissell & Liddell, LLP. Ms. Flynn sent a letter to Mr. Gormley on March 26, 2014, advising that
the Arbitration Award remained unpaid. Annexed hereto as Exhibit “G”, please find copies of
said correspondence between Ms. Flynn, Ms. Fabricatore and Mr. Gormley.
16. Since that time your Affirmant has had two telephone conferences with Mr.
Gormley, with the most recent conversation having taken place on September 17, 2014. It has
unfortunately become evident that Respondent, LLOYD’S does not intend to pay the Award.
Petitioner has been left no alternative other than to seek the requested relief from this Honorable
Court.
17. Based upon the foregoing, it is respectfully requested that the Court issue an
Order confirming the Arbitration Award, dated February 25, 2014, pursuant to CPLR §7510.
WHEREFORE, Petitioner respectfully requests that an Order be issued, confirming the
Arbitration Award of Marcia Sylvester, dated February 25, 2014, pursuant to CPLR §7510; and
that judgment be entered thereon in this Court, in the amount of $50,000.00, together with
interest from February 25, 2014; and, that legal and Court costs associated with this Petition be
awarded to Petitioner, along with such other and further relief as this Court may deem just and
proper.
Dated: Mineola, New York
October 24, 2014
Respectfully submitted,
POKlLff
MICHAEL R. PETROCELLI
PETROCELLI & CHRISTY, LLP
Attorneys for Petitioner
170 Old Country Road, Suite 611
Mineola, New York 11501
(516) 746-4000
File #: 6145 ACE
TO: Underwriters at Lloyd’s, London (Lloyd’s of London)
The Museum Office Building
25 West 53" Street — 14" Floor
New York, New York 10019
ATTORNEY VERIFICATION
STATE OF NEW YORK )
) SS:
COUNTY OF NASSAU )
MICHAEL R. PETROCELLI, being duly sworn, deposes and says that he is a member of
the firm PETROCELLI & CHRISTY, LLP attorneys for the Petitioner, ACE AMERICAN
INSURANCE COMPANY, in the within action; that he has read the foregoing NOTICE OF
PETITION, and VERIFIED PETITION, and knows the contents thereof; that the same is true of
his own knowledge, except as to the matters therein stated to be alleged on information and belief,
and that as to those matters, he believes to be true.
Deponent further states that the reason why this Verification is made by your deponent and
not by said party is that the said party is not within the County where your deponent has his offices.
That the source of deponent's information and the grounds for his belief are records in the
file.
MICHAEL R. PETROCELLI
Sworn to before me this
34° day of October, 2014
Ze _—
Rotary Pyblic
NER
MICHAEL D. ZENT New York
Notary
inty
Commission Exp! Poi
Preview
INDEX NO. 161010/2014 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 11/05/2014 1 . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK wanna nnnenne: ACE AMERICAN INSURANCE COMPANY, Index #: Date Purchased Petitioner, NOTICE OF -against- PETITION UNDERWRITERS AT LLOYD’S, LONDON, a/k/a and/or d/b/a LLOYD’S OF LONDON, Respondent. sana. ---X SIRS: PLEASE TAKE NOTICE, that upon the annexed Petition of ACE AMERICAN INSURANCE COMPANY, by their attorneys PETROCELLI & CHRISTY, LLP, verified the 24 day of October, 2014, the Arbitration Award of Arbitrator Marcia Sylvester, dated February 25, 2014, and the annexed Exhibits, the undersigned will apply to this Court at an IAS Part thereof, at the Courthouse, located at 60 Centre Street, Room 130, New York, New York 10007, on the 25" day of November, 2014, at 9:30 o’clock in the forenoon of that day or as soon thereafter as counsel may be heard, for an Order pursuant to CPLR §7510, confirming the Arbitration Award, and directing that judgment be entered thereon, together with applicable interest, costs, fees and disbursements; and, for such other and further relief as to this Court may seem just and proper. PLEASE TAKE FURTHER NOTICE, that any answering or supporting Affidavits, if any, shall be served upon the undersigned at least seven (7) days prior to the return date herein. Oe DATED: Mineola, New York October 24, 2014 Yours, etc., USM teef MICHAEL R. PETROCELLI PETROCELLI & CHRISTY, LLP Attomeys for Petitioner ACE AMERICAN INSURANCE COMPANY 170 Old Country Road, Suite 611 Mineola, New York 11501 (516) 746-4000 File #: 6145 ACE TO: Underwriters at Lloyd’s, London (Lloyd’s of London) The Museum Office Building 25 West 53” Street 14" Floor New York, New York 10019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK mene nen ene e ne nen en ne nee: Xx ACE AMERICAN INSURANCE COMPANY, Index #: Date Purchased: Petitioner, -against- VERIFIED PETITION UNDERWRITERS AT LLOYD’S, LONDON a/k/a and/or d/b/a LLOYD’S OF LONDON, Respondent. wanes. -X SIRS: MICHAEL R. PETROCELLI, an attorney duly licensed to practice law before the Courts of the State of New York, does hereby affirm the following under penalties of perjury: 1 That I am associated with the firm of Petrocelli & Christy, LLP, attorneys for petitioner, ACE AMERICAN INSURANCE COMPANY (hereinafter, “ACE”), and as such I am fully familiar with the facts and circumstances of the within matter based upon the file maintained by this office. 2 That this application is made pursuant to CPLR §7510, to confirm the Award of Arbitrator, Marcia Sylvester, of Arbitration Forums, Inc. (hereinafter “AFI’), dated February 25, 2014 (Exhibit “A”). 3 That Respondent, UNDERWRITERS AT LLOYD’S, LONDON, a/k/a, and/or d/b/a LLOYD’S OF LONDON (hereinafter “LLOYD’S”), was and still is a foreign corporation, which transacts business in the State of New York. 4 That on April 20, 2009, an accident involving two (2) motor vehicles, occurred at the exit of the “Satellite Fuel Farm”, at John F. Kennedy International Airport, Queens, New York. Said accident involved a 2009 Ford Escape, owned by Covenant Aviation Security, LLC, and operated by their employee, Antonia D. Robinson. The other vehicle involved was a 1997 Peterbilt Truck owned by Allied Aviation Services, and operated by Lyle Spriggs. (See the Port Authority Motor Vehicle Accident Report annexed hereto as Exhibit “B”). 5 That on April 20, 2009, Petitioner, ACE, afforded Workers’ Compensation Insurance to Covenant Aviation Security, LLC, and their employees. 6 That upon information and belief, on April 20, 2009, Respondent, LLOYD’S insured the 1997 Peterbilt Truck owned by Allied Aviation Services. 7. That as a result of said accident, Petitioner ACE’s insured’s employee, Antonia Robinson, sustained serious and severe personal injuries to various portions of her body, including her left knee, back and neck. As a result, ACE ultimately paid in excess of $234,000.00 in Workers’ Compensation benefits. Of that sum, $50,000.00 was paid in lieu of No-Fault first-party benefits. That as the Peterbilt Truck insured by Respondent weighed in excess of 80,000 pounds, Petitioner, ACE, is entitled to pursue recovery of said benefits from LLOYD’S, pursuant to Insurance Law §5105 8 That ACE’s designated representative, Linda Flynn, contacted LLOYD’S third- party administrator, Peter J. McBreen Associates, Inc., seeking to recover the aforementioned benefits. Paul McBreen advised Ms. Flynn that “Lloyds of London” was the insurer of the subject Peterbilt truck. 9 An agreement could not be reached, and Ms. Flynn was left no alternative other than to seek to resolve the dispute in arbitration. As this Honorable Court is aware, Insurance Law §5105(b), requires that any such controversies be submitted to mandatory arbitration, with AFI being the appropriate tribunal. Bn 10. That on or about September 17, 2010, Petitioner, ACE, timely and properly commenced Arbitration against LLOYD’S under AFI Docket Number 1068-10676-10-00. Attached hereto is Exhibit “C”, please find a copy of ACE’s submitted Arbitration Application, Contentions Sheet and supporting evidence. 11. As the Court will note, ACE submitted evidence in support of their claim that LLOYD’S insured was liable, as their truck struck Ms. Robinson’s Ford Escape, which was stopped, as it was exiting the Fuel Farm. ACE submitted the Employer’s Report of Work- Related Injury/Illness (C-2), the Port Authority Motor Vehicle Accident Report, and the written and signed statement of Antonia Robinson. Furthermore, ACE submitted documentation in support of the Workers’ Compensation payments made, including a Payment Ledger, and Workers Compensation Board Notices of Decision (Exhibit “C”). 12. That on or about January 6, 2011, Respondent, LLOYD’s answered the Arbitration Demand. Specifically, Maria Fabricatore, of the office of Peter J. McBreen Associates completed the Arbitration Answer and Contentions Sheet (Exhibit “D”). As the Court will note, Respondent acknowledged that a liability policy was in effect at the time of loss, and that coverage had not been denied for the claim. Respondent, LLOYD’S did not submit any arguments or evidence disputing ACE’s liability or damages claims (LLOYD’S also submitted an additional Response on May 22, 2013, which again admitted coverage, and did not dispute ACE’s claims (also attached as part of Exhibit “D”)). However, Respondent did request a one- year deferment due to Antonia Robinson’s third party litigation which was pending in Supreme Court, New York County, under Index Number 19998/09. 13. Subsequently, the Arbitration Hearing was deferred on an annual basis on the anniversary of the filing date, until such time as the third party bodily injury action was resolved. More recently, an Arbitration Hearing was scheduled for September 17, 2013, and then deferred to September 23, 2014. However, in the interim, on or about January 9, 2014, Antonia Robinson’s third party litigation against Allied Aviation was settled for $2,000,000.00. Accordingly, and in compliance with the AFI’s rules, ACE requested a “deferment challenge” seeking to advance the Arbitration Hearing date, and submitted proof of the litigation settlement, including ACE’s “consent letter” and a copy of the Closing Statement (Exhibit “E”). This tequest was submitted to AFI on January 24, 2014, and on that date, AFI scheduled the Arbitration Hearing for February 25, 2014. On that same date, AFI created and sent a letter to LLOYD’S, care of Peter J. McBreen Associates (Exhibit “F”). 14. On February 25, 2014, the Arbitration Hearing went forward as scheduled, before Arbitrator Marcia Sylvester, at AFI’s New York County hearing location at 90 Broad Street. As the Court will note, following the Hearing, Arbitrator Sylvester issued an Award against LLOYD’S in the amount of $50,000.00 (Exhibit “A”). Said Award was published on February 25, 2014, and therefore, the instant application is timely pursuant to CPLR §7510. 15. Following issuance of the Award, Petitioner’s designated representative, Linda Flynn, of Recovery Services International, forwarded an e-mail to Respondent’s listed representative, Maria Fabbricatore of Peter J. McBreen Associates, Inc. Ms. Fabbricatore then directed Ms. Flynn to contact their counsel, Kenneth Gormley, Esq., of the firm Locke, Lorde, Bissell & Liddell, LLP. Ms. Flynn sent a letter to Mr. Gormley on March 26, 2014, advising that the Arbitration Award remained unpaid. Annexed hereto as Exhibit “G”, please find copies of said correspondence between Ms. Flynn, Ms. Fabricatore and Mr. Gormley. 16. Since that time your Affirmant has had two telephone conferences with Mr. Gormley, with the most recent conversation having taken place on September 17, 2014. It has unfortunately become evident that Respondent, LLOYD’S does not intend to pay the Award. Petitioner has been left no alternative other than to seek the requested relief from this Honorable Court. 17. Based upon the foregoing, it is respectfully requested that the Court issue an Order confirming the Arbitration Award, dated February 25, 2014, pursuant to CPLR §7510. WHEREFORE, Petitioner respectfully requests that an Order be issued, confirming the Arbitration Award of Marcia Sylvester, dated February 25, 2014, pursuant to CPLR §7510; and that judgment be entered thereon in this Court, in the amount of $50,000.00, together with interest from February 25, 2014; and, that legal and Court costs associated with this Petition be awarded to Petitioner, along with such other and further relief as this Court may deem just and proper. Dated: Mineola, New York October 24, 2014 Respectfully submitted, POKlLff MICHAEL R. PETROCELLI PETROCELLI & CHRISTY, LLP Attorneys for Petitioner 170 Old Country Road, Suite 611 Mineola, New York 11501 (516) 746-4000 File #: 6145 ACE TO: Underwriters at Lloyd’s, London (Lloyd’s of London) The Museum Office Building 25 West 53" Street — 14" Floor New York, New York 10019 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) SS: COUNTY OF NASSAU ) MICHAEL R. PETROCELLI, being duly sworn, deposes and says that he is a member of the firm PETROCELLI & CHRISTY, LLP attorneys for the Petitioner, ACE AMERICAN INSURANCE COMPANY, in the within action; that he has read the foregoing NOTICE OF PETITION, and VERIFIED PETITION, and knows the contents thereof; that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters, he believes to be true. Deponent further states that the reason why this Verification is made by your deponent and not by said party is that the said party is not within the County where your deponent has his offices. That the source of deponent's information and the grounds for his belief are records in the file. MICHAEL R. PETROCELLI Sworn to before me this 34° day of October, 2014 Ze _— Rotary Pyblic NER MICHAEL D. ZENT New York Notary inty Commission Exp! Poi