Motion-Secondary: Liberty Mutual Fire Ins Co, Price Chopper Operating Co Inc, Price Chopper Market Center, Konover Construction Corp, Golub Corporation, Kbe Building Corp v. Demco Ny Corp, Kelly G. Meenagh, Thomas F. Kelly, John P. Meenagh Jr, Harrington Ocko & Monk Llp, Glenn A. Monk, Adam G. Greenberg, Edward C. Haynes, Zurich American Ins Co, National Casualty Company (Third Party Defendant)

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                                INDEX     NO.   117722/2009
(FILED: NEW YORK COUNTY CLERK 0371872011)
NYSCEF   DOC.     NO.   33                                                                              RECEIVED   NYSCEF       03/18/2011




                SUPREME COURT OF THE STATE OF NEW YORK
                COUNTY OF NEW YORK

                LIBERTY MUTUAL FIRE INSURANCE COMPANY,
                as subrogee of Price Chopper Operating Co., Inc. d/b/a                           Index No. 117722/09
                Price Chopper Market Center, Konover Construction
                Corp., and Golub Corporation, and KBE BUILDING
                CORPORATION, formerly known as KONOVER
                CONSTRUCTION CORP., Individually,

                Plaintiffs,

                          -against-

                DEMCO NEW YORK CORP., KELLY & MEENAGH,
                THOMAS F. KELLY, JOHN P. MEENAGH, JR.,
                HARRINGTON OCKO & MONK, LLP, GLENN A.
                MONK, ADAM G. GREENBERG, EDWARD C.
                HAYNES, and ZURICH AMERICAN INSURANCE
                COMPANY,

                                             Defendants.
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                MARYLAND CASUALTY COMPANY and DEMCO                                              Third-Party Index No.:
                NEW YORK CORP.,                                                                  590275/10

                                             Third-Party Plaintiffs,
                                                                                                 REPLY AFFIDAVIT IN
                -against-                                                                        FURTHER SUPPORT OF
                                                                                                 MOTION TO COMPEL
                NATIONAL CASUALTY COMPANY,

                                             Third-Party Defendant.
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                STATE OF NEW YORK                       )
                                                        ) ss.
                COUNTY OF NEW YORK)

                                   FRED H. BICKNESE, being duly sworn, deposes and says:
1      I am an associate of the law firm of JAFFE at ASHER, LLP, attorneys

for plaintiffs LIBERTY MUTUAL FIRE INSURANCE COMPANY and KBE BUILDING

CORPORATION            (collectively “Plaintiffs”); as such, | am fully familiar with the facts and

circumstances set forth herein.

               2          I submit this reply affidavit in further support of Plaintiffs’ motion for

an Order, pursuant to C.P.L.R. 3124, (1) compelling defendant/third-party plaintiff

ZURICH AMERICAN INSURANCE COMPANY i/s/h/a MARYLAND CASUALTY

COMPANY       (“Maryland”) to provide full and complete responses to Plaintiffs’ First Set of

Interrogatories and First Set of Document Requests; and (2) granting such other and

further relief as this Court deems just and proper.

               3          A full four (4) months ago, on November 18, 2010, Plaintiffs served

their First Set of Interrogatories and First Set of Document Requests upon Maryland’s

counsel by U.S. mail.       Plaintiffs have not received any written response, either objections,

documents, or answers, whatsoever to these discovery demands.             The time period for

Maryland’s responses has long since elapsed.

               4          Plaintiffs ask this Court for a date certain by which Maryland must

fully and completely answer the interrogatories and to produce all of the requested

documents.

               5          Maryland has not provided any legitimate excuse for taking more than

four (4) months to respond to discovery.         Maryland’s arguments regarding willfulness or

contumacious conduct are irrelevant.        The fact is that it has not responded to discovery

and it is long overdue.     This is a simple motion to compel.     We have not asked that

                                                   2
Maryland’s answer be stricken.     Maryland’s mere failure to comply with discovery is

sufficient to support the relief requested.

               6       Maryland’s opposition suggests that Plaintiffs’ motion should be

rendered a nullity due to the return date of the motion.     However, Maryland is mistaken

regarding the actual return date of this motion.

               7.      Counsel for Plaintiffs filed the present motion using the Court’s

electronic-filing system, which caused the motion papers to be served by email to all

counsel including Maryland’s counsel.     The Notice of Motion filed with the Court via the

electronic-filing system, a copy of which is annexed hereto as Exhibit “A”, identified

March 24, 2011       (a Thursday) as the return date.

               8       I also served paper courtesy copies of the motion papers on all

counsel.   My office inadvertently sent out the paper courtesy copies with an incorrect first

page of the Notice of Motion, stating that the return date was April 24, 2011.        However,

the filed copy, which was served upon Maryland’s counsel via the electronic-filing system,

is the controlling document.

               9       Counsel for Maryland recognized the discrepancy between the paper

courtesy copy version and the actual, controlling filed version.   He timely filed opposition.

               10.     Based upon all of the above, this Court should order that Maryland

provide full and complete responses to Plaintiffs’ First Set of Interrogatories and First Set of

Document Requests by a date certain.

               WHEREFORE,        this Court should grant Plaintiffs’ motion compelling

Maryland to provide full and complete responses to Plaintiffs’ First Set of Interrogatories

                                                3
and First Set of Document Requests by a date certain, and grant such other and further

relief as this Court deems just and proper.
                                                                            —.



                                                  a     FRED H. BICKNESE
Sworn to before me this

18th day of March, 2011


            LLL.
Notary Public



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