Preview
FILED: NEW YORK INDEX NO. 117722/2009
COUNTY CLERK 04/04/2011)
NYSCEF DOC. NO. 35 RECEIVED NYSCEF 04/04/2011
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
neste een tence ene nen nnn enennnn anne neneenennenneneenannneneennen)
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 @t MEENAGH,
THOMAS F. KELLY, JOHN P. MEENAGH, JR.,
HARRINGTON OCKO a& MONK, LLP, GLENN A.
MONK, ADAM G. GREENBERG, EDWARD C.
HAYNES, and ZURICH AMERICAN INSURANCE
COMPANY,
Defendants.
ane. X
MARYLAND CASUALTY COMPANY and DEMCO Third-Party Index No.:
NEW YORK CORP., 590275/10
Third-Party Plaintiffs, REPLY AFFIDAVIT IN
FURTHER SUPPORT OF
-against- MOTION TO COMPEL
NATIONAL CASUALTY COMPANY,
Third-Party Defendant.
enn enn enn enn enn ene ERoERSeR nem eemeeee!
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK)
FRED H. BICKNESE, being duly sworn, deposes and says:
1 I am associated with 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 | submit this Reply affidavit in further support of Plaintiffs’ motion for
an Order, pursuant to C.P.L.R. 3124, (1) compelling defendants HARRINGTON OCKO
at MONK, LLP, GLENN A. MONK, ADAM G. GREENBERG, and EDWARD C.
HAYNES (collectively “HO&tM”) 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 The opposition submitted by counsel for HO&M contains several
complete misrepresentations that must be corrected.
4 The suggestion that I did not make a good faith effort to resolve this
discovery dispute prior to bringing this motion is utterly preposterous and laughable.
5 On November 18, 2010, Plaintiffs served their First Set of
Interrogatories and First Set of Document Requests upon HO&tM’s counsel by U.S. mail.
Under the C.P.L.R., responses to these requests were due well before the end of last year.
6 After HO&M provided no responses or responsive documents by the
middle of January, on or about January 17, 2011, I first made contact with Daniel G.
Ecker, Esq., counsel for HO&M, regarding his client’s late responses. I recall that this was
the first time | asked him about this issue, because at that time I also asked Mr. Ecker for
information regarding the underlying action’s settlement, which he kindly provided. |
2
agreed at that time to allow HO&M a short additional amount of time, before | would
seek relief from this Court. | did not grant HO&M a lengthy extension, or an indefinite
extension, and | made that clear to Mr. Ecker, as his clients’ responses were already
seriously delinquent.
7 I spoke with Mr. Ecker on several other occasions about this issue
prior to making the instant motion, including on February 15, 2011, as was documented
in the affidavit submitted with the motion papers.
8 Each time that I spoke with Mr. Ecker he assured me that he would
be providing responses and documents soon. I made it clear each time that I spoke with
Mr. Ecker that I would be forced to make a motion to compel if the promised responses
and documents were not in fact provided within a reasonable time frame.
9 The opposition submitted by counsel for HO&M also suggests that
my refusal to adjourn the instant motion once again, after | had already permitted a two
week adjournment, was somehow improper, unfair, or inconsistent with a good faith effort
to resolve this motion without Court intervention. But the simple fact remains that, as of
today, I have still not received any responses or documents whatsoever — not a single thing
— from HO&M’s counsel. Accordingly, any additional extension of time on the present
motion would not have made a different; Plaintiffs still have not received the information
to which they are entitled, and which they need to prosecute their claim and protect their
rights.
10. Finally, the constant refrain of HO&tM’s opposition, that they are
“willing” to provide the responses and documents, falls flat. While being “willing” to
3
respond to discovery demands is the first step, actually responding to discovery demands is
what is necessary and required under the C.P.L.R.
WHEREFORE, this Court should grant Plaintiffs’ motion compelling
HO&™M to provide full and complete responses to Plaintiffs’ First Set of Interrogatories and
First Set of Document Requests, and granting such other and further relief as this Court
deems just and proper.
-
—
_- ERED H. BICKNESE
Sworn to before me this
4th day of April, 2011
Notary Public
MARK MONA‘ cK
Notary Pu lic, State o { New York
021 M06 081470
2a
No.
Qualified in New York
October 7,
Commission Expires
Preview
FILED: NEW YORK INDEX NO. 117722/2009 COUNTY CLERK 04/04/2011) NYSCEF DOC. NO. 35 RECEIVED NYSCEF 04/04/2011 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK neste een tence ene nen nnn enennnn anne neneenennenneneenannneneennen) 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 @t MEENAGH, THOMAS F. KELLY, JOHN P. MEENAGH, JR., HARRINGTON OCKO a& MONK, LLP, GLENN A. MONK, ADAM G. GREENBERG, EDWARD C. HAYNES, and ZURICH AMERICAN INSURANCE COMPANY, Defendants. ane. X MARYLAND CASUALTY COMPANY and DEMCO Third-Party Index No.: NEW YORK CORP., 590275/10 Third-Party Plaintiffs, REPLY AFFIDAVIT IN FURTHER SUPPORT OF -against- MOTION TO COMPEL NATIONAL CASUALTY COMPANY, Third-Party Defendant. enn enn enn enn enn ene ERoERSeR nem eemeeee! STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK) FRED H. BICKNESE, being duly sworn, deposes and says: 1 I am associated with 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 | submit this Reply affidavit in further support of Plaintiffs’ motion for an Order, pursuant to C.P.L.R. 3124, (1) compelling defendants HARRINGTON OCKO at MONK, LLP, GLENN A. MONK, ADAM G. GREENBERG, and EDWARD C. HAYNES (collectively “HO&tM”) 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 The opposition submitted by counsel for HO&M contains several complete misrepresentations that must be corrected. 4 The suggestion that I did not make a good faith effort to resolve this discovery dispute prior to bringing this motion is utterly preposterous and laughable. 5 On November 18, 2010, Plaintiffs served their First Set of Interrogatories and First Set of Document Requests upon HO&tM’s counsel by U.S. mail. Under the C.P.L.R., responses to these requests were due well before the end of last year. 6 After HO&M provided no responses or responsive documents by the middle of January, on or about January 17, 2011, I first made contact with Daniel G. Ecker, Esq., counsel for HO&M, regarding his client’s late responses. I recall that this was the first time | asked him about this issue, because at that time I also asked Mr. Ecker for information regarding the underlying action’s settlement, which he kindly provided. | 2 agreed at that time to allow HO&M a short additional amount of time, before | would seek relief from this Court. | did not grant HO&M a lengthy extension, or an indefinite extension, and | made that clear to Mr. Ecker, as his clients’ responses were already seriously delinquent. 7 I spoke with Mr. Ecker on several other occasions about this issue prior to making the instant motion, including on February 15, 2011, as was documented in the affidavit submitted with the motion papers. 8 Each time that I spoke with Mr. Ecker he assured me that he would be providing responses and documents soon. I made it clear each time that I spoke with Mr. Ecker that I would be forced to make a motion to compel if the promised responses and documents were not in fact provided within a reasonable time frame. 9 The opposition submitted by counsel for HO&M also suggests that my refusal to adjourn the instant motion once again, after | had already permitted a two week adjournment, was somehow improper, unfair, or inconsistent with a good faith effort to resolve this motion without Court intervention. But the simple fact remains that, as of today, I have still not received any responses or documents whatsoever — not a single thing — from HO&M’s counsel. Accordingly, any additional extension of time on the present motion would not have made a different; Plaintiffs still have not received the information to which they are entitled, and which they need to prosecute their claim and protect their rights. 10. Finally, the constant refrain of HO&tM’s opposition, that they are “willing” to provide the responses and documents, falls flat. While being “willing” to 3 respond to discovery demands is the first step, actually responding to discovery demands is what is necessary and required under the C.P.L.R. WHEREFORE, this Court should grant Plaintiffs’ motion compelling HO&™M to provide full and complete responses to Plaintiffs’ First Set of Interrogatories and First Set of Document Requests, and granting such other and further relief as this Court deems just and proper. - — _- ERED H. BICKNESE Sworn to before me this 4th day of April, 2011 Notary Public MARK MONA‘ cK Notary Pu lic, State o { New York 021 M06 081470 2a No. Qualified in New York October 7, Commission Expires