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FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019
Supreme Court of the State of New York
COUNTY OF KINGS
--------------------------------------------------- X Index No. 510798/2018
Atlantic Casualty Insurance Company, : IAS Part: 81
Plaintiff, : Hon. Carl Landicino, J.S.C.
- against - :
:
Eastern Fruit & Vegetables Inc., :
Defendant. :
----------- X
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S "OMNIBUS
MOTION" AND
TO STRIKE DEFENDANT'S SIXTH AFFIRMATIVE DEFENSE
MOTION TO REARGUE
(The order of the arguments from plaintiff's memorandum of law is reversed for purposes
of clarity and efficiency.)
L. Blake Morris, Esq.
Attorney for Defendant
1214 Cortelyou Road
Brooklyn, NY 11218
(718) 826-8401
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PRELIMINARY STATEMENT
Eastern Fruit & Vegetables Inc. ("Eastern") respectfully submits this
memorandum of law opposing Atlantic Casualty Insurance Company's ("Atlantic")
omnibus motion todismiss Eastern's Sixth Affirmative defense and/or for reargument of
the Court's order dated July 2, 2019, entered July 15, 2019.
STATEMENT OF FACTS
On or about May 24, 2018, this action was commenced by the purchase of an
index number and electronic filing of the summons and complaint for the sum of
$93,141,09 for earned premiums but pled as premium with interest from an unspecified
date. The defendant interposed an answer on June 29, 2018, with a counterclaim seeking
attorneys'
recovery for fees and asserted seven affirmative defenses. See infra. The
plaintiff interposed a reply on August 9, 2018denying every allegation of Eastern Fruit's
counterclaims. Summons, complaint, answer, and reply are attached to the Robert Walker
Lewis affirmation ("Lewis Affm") dated August 28, 2019 in support of plaintiff's motion
attached thereto as Exhibit 2. (See NY St Cts Elec Filing [NYSCEF] Doc. No. 46, Lewis
Affm at paras. 6-7.)
On or about September 25, 2018 Atlantic e-filed a motion to dismiss Eastern
Fruit's counter-claims and a motion for summary judgment seeking the sum of
$93,141.04 allegedly due and owing for two primary insurance policies issued to Eastern
Fruit: $69,903.09 under L-146001424-1 and $23,238.00 under L-
(1) policy (2) policy
146001424-2.
Plaintiff, Atlantic Casualty, is an unauthorized excess/surplus lines insurance
carrier. Eastern Fruit purchased a commercial general liability insurance policy from
2
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Atlantic Casualty. As explained in the Complaint, plaintiff alleges Eastern failed to remit
payment for both premiums. See, First Cause of Action para. 7. Also, under the first
cause of action in paragraph nine, Atlantic alleges that Eastern breached its contract
because it did not remit payment of "audit premiums", iñconsistent with paragraph seven.
See, para. 9 cmplt.
On or about June 29, 2018, Eastern e-filed a verified answer in which it denied
these allegations. Eastern asserted seven affirmative defenses; failure to name a
necessary party; lack of authorization under New York State Law to issue insurance
policies; failure to provide audit standards, rate classification, or rate structure; failure to
allege state of incorporation; failure to state a cause of action; incapacity to commence
and maintain suit; and estoppel.
On September 25, 2018 Atlantic e-filed a motion for summary judgment, requesting
that the Court issue judgracñt in its favor for the alleged balañce and requesting that the Court
dismiss Eastern's counterclaim. Eastern opposed Atlantic's motion and e-filed a cross-motion
seeking to dismiss this action, arguing that Atlantic Casualty lacks capacity to rñaintain this
action.
Eastern's cross-motion also requested the Court direct Atlantic Casualty to post a
bond for $500 pursuant to CPLR 8502 ('the bond") which the court granted. The bond was
deposited in Eastern's attorney escrow account. (See NY St Cts Elec Filing [NYSCEF] Doc.
No. 31, Bond Payment Check)
The Court resolved the motion and cross-motion by Decision and Order dated July 2,
2019 entered July 23, 2019. (See NY St Cts Elec Filing [NYSCEF] Doc. No. 39, Decision
and Order on Motion); (NYSCEF Doc. No. 52, plaintiff's Exhibit 6.) The Court granted
Atlantic's motion for summary judgment to the extent that it dismissed Eastem's
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counterclaim, but otherwise denied Atlantic's motion. The Court found that there is a
question of fact as to whether Atlantic Casualty has the capacity to maintain this action,
because the question of whether they were actually doing business in New York preclüdes
dismissal at this juncture. (See NYSCEF Doc. No. 39, Decision and Order on Motion)
For the reasons discussed below, it is respectfully submitted that, as a matter of
law, Atlantic's motion to strike Eastern's Sixth Affirmative Defense and motion for
reargument be denied.
STANDARD OF REVIEW
Standard of Review on a Motion to Strike an Affirmative Defen_se:
When considering a motion to strike an affirmative defense (as with a motion to
dismiss for failure to set forth a cause of action), the facts pleaded are gëñerally to be
presumed as true and are to be accorded every favorable inference; although bare legal
conclusions as well as factual claims flatly contradicted by the record are not entitled to
any such consideration. (See Mazzei v. Kyriacou, 951 N.Y.S.2d 557, 559 [2d Dep't
2012]); (Abney v. Lunsford, 678 N.Y.S.2d 292 [2d Dep't 1998]); (Doria v. Masucci, 646
N.Y.S.2d 363 [2d Dep't 1996]); (see also CPLR 3211[b]) ("A party may move for
judgmeñt one or more defenses, on the ground that a defense is not stated or
dismissing
has no merit").
The plaintiff bears the initial burden of showing that the defense lacks merit,
based on admissible evidence that demonstrates the absence of facts to support the
defense. The burden then shifts to the defendañt to show the existence of facts that
support the defense, that a factual dispute exists. (Palais Partners v.
demonstrating
4
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Vollenweider, 660 N.Y.S.2d 272 [Civ. Ct. NY Co. 1997]); (Gonsenhauser v. Central
Trust Co., 378 N.Y.S.2d 536 [4th Dep't 1976])
Once the plaintiff has raised a proper challenge to the factual basis for a defense,
the defendant has the burden of showing that the defense raises an issue to be resolved by
the trier of fact. (See American Mortgage Banking, Ltd. v. Canestro, 607 N.Y.S.2d 657
[1st Dep't 1994]) (defendant's unsubstantiated allegations failed to establish defenses of
usury and fraudulent inducement).
Where an affirmative defense is devoid of specific factual allegations and does
not indicate the material elements of said defense and how they would apply to the case,
the affirmative defense must be dismissed as insufficient. (See Butler v. Catinella, 868
N.Y.S.2d 101 [2d Dep't 2008]); (Becker v. Elm Air Conditioning Corp., 533 N.Y.S.2d
605 [2d Dep't 1988]).
defendants'
Thus, it is burden to properly plead an affirmative defense, as well as
their entitlement thereto. (See CPLR § 3013) ("Statements in a pleading shall be
sufficiently particular to give the court and parties notice of the transactions,
occurrences, or series of transactions or occurrences, intended to be proved and the
material elements of each cause of action or defense") (emphasis added). Factual
inadequacy is not excused by a liberal view of pleadings or their construction. (Abney v.
Lunsford, 254 A.D.2d 318, 678 N.Y.S.2d 292 [2d Dep't 1998]); (Megna v. Becton
Dickinson & Co., 215 A.D.2d 542, 626 N.Y.S.2d 546 [2d Dep't 1995]); (Becker v. Elm
Air Conditioning Corp., 143 A.D.2d 965, 533 N.Y.S.2d 605 [2d Dep't 1988]); (Travelers
Ins. Co. v. Ferco, Inc., 122 A.D.2d 718, 511 N.Y.S.2d 594 [1st Dep't 1986]).
5
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Standard ofReview on a Motion for Leave to Reargue:
A motion for leave to reargue, pursuant to CPLR 2221(d), "shall be based upon
matters of fact or law allegedly overlooked or misapprehended by the court in
motion."
determining the prior Such motion "is addressed to the sound discretion of the
court."
William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 (1st Dept 1992), ly
dismissed, 80 NY2d 1005 (1992), rearg denied, 81 NY2d 782 (1993). Reargument is not
designed or intended to afford the unsuccessful party successive opportunities to reargue
issues previously decided (see Pro Brokerage v Home Ins. Co., 99 AD2d 971 [1st Dept
1984]), or to present arguments different from those originally asserted. (See William P.
Pahl Equip. Corp., 182 AD2d at 27); Foley v Roche, 68 AD2d 558 [1st Dept 1979]);
(Amato v Lord & Taylor, Inc., 10 AD3d 374 [2d Dept 2004]). On reargument, the court's
attention must be drawn to any controlling fact or applicable principle of law which was
misconstrued or overlooked. (See Macklowe v Browning School, 80 AD2d 790 [1st Dept
1981].)
ARGUMENT
"OMNIBUS
MOTION" BRANCH FOR REARGUMENT
I. PLAINTIFF'S
SHOULD BE DENIED BECAUSE THE ISSUES RAISED ARE NOT
ADDRESSED IN THE UNDERLYING MOTION
(The order of the arguments from plaintiff's memorandum of law is reversed for purposes
of clarity and efficiency.)
Plaintiff's motion for reargument should be denied because it does not address
issues from the underlying motion. "A motion for leave to reargue 'shall be based upon
matters of fact or law allegedly overlooked or misapprehended by the court in
the prior motion, but shall not include any matters of fact not offered on the
determining
motion' " CPLR
prior (Grimm v Bailey, 105 AD3d 703, 704, [2d Dept 2013], quoting
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2221 [d] [2]}; (see Matter of American Alternative Ins. Corp. v Pelszynski, 85 AD3d
1157, 1158 [2d Dept 2011]). "While the determination to grant leave to reargue a motion
lies within the sound discretion of the court, a motion for leave to reargue is not designed
to provide an unsuccessful party with successive opportunities to reargue issues
presented"
previously decided, or to present arguments different from those originally
(Matter of Anthonyl Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]
[citations and internal quotations omitted]).
The issue of iñcapacity under BCL §1312 was resolved in the underlying motion,
here; Atlantic is attempting to introduce legal arguments that were not made in the
underlying motion. In plaintiff's opposition to Eastern's cross-motion and reply, plaintiff
claimed that they were eligible to write surplus line insurance policies. In the underlying
motion the issue that was litigated was whether Atlantic was doing business for purposes
of BCL §1312 (a), which would have affected its ability to maintain the cause of action.
None of these issues were overlooked or misappreheaded in the decision and order dated
July 2, 2019 and entered July 23, 2019.
Atlantic is now attempting to litigate a different issue, whether it was authorized
to issue a particular policy as an excess line carrier. New questions which, were not
previously advanced, may not be raised on a motion to reargue (Levi v Utica First
Insurance Company, 12 AD3d 256, 258, [1st Dept 2004]). Moreover, a court should view
the evidence in the light most favorable to the nonmoving party (see Leon v Martinez, 84
NY2d at 87-88 [1994]; see also Raju v Cortlandt Town Center, 38 AD3d 874, 834
N.Y.S.2d 211 [2d Dept 2007].) Thus, the issues raised in the 2221 motion were not part
of the underlying motion and therefore improper for purposes of the motion to reargue.
7
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MOTION"
IL PLAINTIFF'S "OMNIBUS BRANCH TO DISMISS
DEFENDANT'S SIXTH AFFIRMATIVE DEFENSE OF INCAPACITY TO
MAINTAIN ACTION SHOULD BE DENIED AS PLAINTIFF MOVANT FAILS
TO PROVIDE THE STATUTORY AND ADMINISTRATIVE REQUIREMENTS
DOCUMENTATION AS CITED BY PLAINTIFF IN ITS OWN MOTION
(The order of the arguments from plaintiff's memorandum of law is reversed for purposes
of clarity and efficiency.)
Plaintiff's motion to dismiss or strike Eastern's sixth affirmative defense,
incapacity to maintain this action, should be denied. For purposes of this CPLR 3211(b)
motion, plaintiff is providing clarification of a possible exemption from the restriction of
authorization to do business in the State of New York. As stated in the court order
"Atlantic's capacity to maintain this action apparently turns on whether or not Atlantic
business'
actually 'does in New York. This presents a question of fact that precludes
juncture."
dismissal at this (See NYSCEF Doc. No. 39, Decision and Order on Motion,
p.6.) The plaintiff provided Insurance Law §2105 and Regulation 41 from the
Department of Financial Services ("DFS"), which provides an exception for excess line
carriers to issue insurance policies in this State. There are various exceptions, the one at
bar regards primary geñêral liability coverage. Eastern reviewed and concurs with the
correct applicability of aforementioned statute and regulations.
Insurance Law §2105 (h) states that an excess line broker may procure an
insurance policy from an insurer not authorized to issue a policy in this State "where such
broker, after diligent effort, could not procure substantially similar coverage from an
state."
insurer authorized to do business in this The Department of Financial Services,
interpreting Insurance Law §2105, has issued regulatory requirements.
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Excess Line Carrier Prohibitions:
DFS Regulation 41 prohibits an excess line broker from procuring "coverage
from an unauthorized insurer and the unauthorized insurer shall not provide coverage if
the coverage is prohibited by law, including if the coverage: (1) does not constitute
insurance within the rneaning of section 1101 or other sections of the Insurance Law; (2)
involves a kind of insurance not authorized under section 1113 or other sections of the
Insurance Law; (3) is not within the scope of section 2105 of the Insurance Law; (4) is
determined by any Appellate Division of the New York State Supreme Court or the New
York State Court of Appeals to be against public policy in this State; or(5) has been
law"
otherwise proscribed by (11 N.Y.C.R.R. 27.11(a)) DFS Regulation 41 also states
that "[a]n excess line broker shall not solicit for, bind coverage on behalf of, or act as an
agent or representative of, an unauthorized insurer, except as provided for in section 27.4
Part."
of this (11 N.Y.C.R.R. 27.11(c))
Under DFS Regulation No. 41 an excess line broker may procure an insurance
policy from an insurer not authorized to issue a policy in this State if the "risk has been
declined at least three authorized insurers, each of which is authorized in this State to
by
write insurance of the kind requested and is an insurer that the excess line broker has
reason to believe might consider writing the type of coverage or class of insurance
involved."(11 N.Y.C.R.R. 27.3(a)) Additionally, an affirming broker is required to have
an affidavit "the information relied upon that formed the basis of such licensee's
stating
or affirming broker's reason to believe that the authorized insurer might consider writing
involved."
the type of coverage or class of insurance (11 N.Y.C.R.R. 27.3(b))
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Plaintiff failed to produce or allege compliance with Insurance Law §2105 (h) and
the aforementioned Regulation No. 41, leaving the court's current determination of a
factual issue unresolved. Plaintiff in its motion also failed to produce any documentation
to support the factual arguments therein.
Atlantic failed to produce or allege plaintiff's insurance broker's affidavit.
Additionally, Atlantic failed to produce or allege documentation of the declinations as
required. Under the DFS Regulation 41 an excess line broker has an affirmative
obligation to "keep a complete and separate record of all policies procured from
unauthorized insurers under its excess line license. Where declinations are required, the
excess line broker and the producing broker shall maintain files supporting declinations
broker."
by authorized insurers obtained by such excess line or producing (11 N.Y.C.R.R.
27.3(f)) Atlantic has not produced or alleged the three declination reco
Preview
FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 Supreme Court of the State of New York COUNTY OF KINGS --------------------------------------------------- X Index No. 510798/2018 Atlantic Casualty Insurance Company, : IAS Part: 81 Plaintiff, : Hon. Carl Landicino, J.S.C. - against - : : Eastern Fruit & Vegetables Inc., : Defendant. : ----------- X MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S "OMNIBUS MOTION" AND TO STRIKE DEFENDANT'S SIXTH AFFIRMATIVE DEFENSE MOTION TO REARGUE (The order of the arguments from plaintiff's memorandum of law is reversed for purposes of clarity and efficiency.) L. Blake Morris, Esq. Attorney for Defendant 1214 Cortelyou Road Brooklyn, NY 11218 (718) 826-8401 1 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 PRELIMINARY STATEMENT Eastern Fruit & Vegetables Inc. ("Eastern") respectfully submits this memorandum of law opposing Atlantic Casualty Insurance Company's ("Atlantic") omnibus motion todismiss Eastern's Sixth Affirmative defense and/or for reargument of the Court's order dated July 2, 2019, entered July 15, 2019. STATEMENT OF FACTS On or about May 24, 2018, this action was commenced by the purchase of an index number and electronic filing of the summons and complaint for the sum of $93,141,09 for earned premiums but pled as premium with interest from an unspecified date. The defendant interposed an answer on June 29, 2018, with a counterclaim seeking attorneys' recovery for fees and asserted seven affirmative defenses. See infra. The plaintiff interposed a reply on August 9, 2018denying every allegation of Eastern Fruit's counterclaims. Summons, complaint, answer, and reply are attached to the Robert Walker Lewis affirmation ("Lewis Affm") dated August 28, 2019 in support of plaintiff's motion attached thereto as Exhibit 2. (See NY St Cts Elec Filing [NYSCEF] Doc. No. 46, Lewis Affm at paras. 6-7.) On or about September 25, 2018 Atlantic e-filed a motion to dismiss Eastern Fruit's counter-claims and a motion for summary judgment seeking the sum of $93,141.04 allegedly due and owing for two primary insurance policies issued to Eastern Fruit: $69,903.09 under L-146001424-1 and $23,238.00 under L- (1) policy (2) policy 146001424-2. Plaintiff, Atlantic Casualty, is an unauthorized excess/surplus lines insurance carrier. Eastern Fruit purchased a commercial general liability insurance policy from 2 2 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 Atlantic Casualty. As explained in the Complaint, plaintiff alleges Eastern failed to remit payment for both premiums. See, First Cause of Action para. 7. Also, under the first cause of action in paragraph nine, Atlantic alleges that Eastern breached its contract because it did not remit payment of "audit premiums", iñconsistent with paragraph seven. See, para. 9 cmplt. On or about June 29, 2018, Eastern e-filed a verified answer in which it denied these allegations. Eastern asserted seven affirmative defenses; failure to name a necessary party; lack of authorization under New York State Law to issue insurance policies; failure to provide audit standards, rate classification, or rate structure; failure to allege state of incorporation; failure to state a cause of action; incapacity to commence and maintain suit; and estoppel. On September 25, 2018 Atlantic e-filed a motion for summary judgment, requesting that the Court issue judgracñt in its favor for the alleged balañce and requesting that the Court dismiss Eastern's counterclaim. Eastern opposed Atlantic's motion and e-filed a cross-motion seeking to dismiss this action, arguing that Atlantic Casualty lacks capacity to rñaintain this action. Eastern's cross-motion also requested the Court direct Atlantic Casualty to post a bond for $500 pursuant to CPLR 8502 ('the bond") which the court granted. The bond was deposited in Eastern's attorney escrow account. (See NY St Cts Elec Filing [NYSCEF] Doc. No. 31, Bond Payment Check) The Court resolved the motion and cross-motion by Decision and Order dated July 2, 2019 entered July 23, 2019. (See NY St Cts Elec Filing [NYSCEF] Doc. No. 39, Decision and Order on Motion); (NYSCEF Doc. No. 52, plaintiff's Exhibit 6.) The Court granted Atlantic's motion for summary judgment to the extent that it dismissed Eastem's 3 3 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 counterclaim, but otherwise denied Atlantic's motion. The Court found that there is a question of fact as to whether Atlantic Casualty has the capacity to maintain this action, because the question of whether they were actually doing business in New York preclüdes dismissal at this juncture. (See NYSCEF Doc. No. 39, Decision and Order on Motion) For the reasons discussed below, it is respectfully submitted that, as a matter of law, Atlantic's motion to strike Eastern's Sixth Affirmative Defense and motion for reargument be denied. STANDARD OF REVIEW Standard of Review on a Motion to Strike an Affirmative Defen_se: When considering a motion to strike an affirmative defense (as with a motion to dismiss for failure to set forth a cause of action), the facts pleaded are gëñerally to be presumed as true and are to be accorded every favorable inference; although bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration. (See Mazzei v. Kyriacou, 951 N.Y.S.2d 557, 559 [2d Dep't 2012]); (Abney v. Lunsford, 678 N.Y.S.2d 292 [2d Dep't 1998]); (Doria v. Masucci, 646 N.Y.S.2d 363 [2d Dep't 1996]); (see also CPLR 3211[b]) ("A party may move for judgmeñt one or more defenses, on the ground that a defense is not stated or dismissing has no merit"). The plaintiff bears the initial burden of showing that the defense lacks merit, based on admissible evidence that demonstrates the absence of facts to support the defense. The burden then shifts to the defendañt to show the existence of facts that support the defense, that a factual dispute exists. (Palais Partners v. demonstrating 4 4 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 Vollenweider, 660 N.Y.S.2d 272 [Civ. Ct. NY Co. 1997]); (Gonsenhauser v. Central Trust Co., 378 N.Y.S.2d 536 [4th Dep't 1976]) Once the plaintiff has raised a proper challenge to the factual basis for a defense, the defendant has the burden of showing that the defense raises an issue to be resolved by the trier of fact. (See American Mortgage Banking, Ltd. v. Canestro, 607 N.Y.S.2d 657 [1st Dep't 1994]) (defendant's unsubstantiated allegations failed to establish defenses of usury and fraudulent inducement). Where an affirmative defense is devoid of specific factual allegations and does not indicate the material elements of said defense and how they would apply to the case, the affirmative defense must be dismissed as insufficient. (See Butler v. Catinella, 868 N.Y.S.2d 101 [2d Dep't 2008]); (Becker v. Elm Air Conditioning Corp., 533 N.Y.S.2d 605 [2d Dep't 1988]). defendants' Thus, it is burden to properly plead an affirmative defense, as well as their entitlement thereto. (See CPLR § 3013) ("Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense") (emphasis added). Factual inadequacy is not excused by a liberal view of pleadings or their construction. (Abney v. Lunsford, 254 A.D.2d 318, 678 N.Y.S.2d 292 [2d Dep't 1998]); (Megna v. Becton Dickinson & Co., 215 A.D.2d 542, 626 N.Y.S.2d 546 [2d Dep't 1995]); (Becker v. Elm Air Conditioning Corp., 143 A.D.2d 965, 533 N.Y.S.2d 605 [2d Dep't 1988]); (Travelers Ins. Co. v. Ferco, Inc., 122 A.D.2d 718, 511 N.Y.S.2d 594 [1st Dep't 1986]). 5 5 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 Standard ofReview on a Motion for Leave to Reargue: A motion for leave to reargue, pursuant to CPLR 2221(d), "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in motion." determining the prior Such motion "is addressed to the sound discretion of the court." William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 (1st Dept 1992), ly dismissed, 80 NY2d 1005 (1992), rearg denied, 81 NY2d 782 (1993). Reargument is not designed or intended to afford the unsuccessful party successive opportunities to reargue issues previously decided (see Pro Brokerage v Home Ins. Co., 99 AD2d 971 [1st Dept 1984]), or to present arguments different from those originally asserted. (See William P. Pahl Equip. Corp., 182 AD2d at 27); Foley v Roche, 68 AD2d 558 [1st Dept 1979]); (Amato v Lord & Taylor, Inc., 10 AD3d 374 [2d Dept 2004]). On reargument, the court's attention must be drawn to any controlling fact or applicable principle of law which was misconstrued or overlooked. (See Macklowe v Browning School, 80 AD2d 790 [1st Dept 1981].) ARGUMENT "OMNIBUS MOTION" BRANCH FOR REARGUMENT I. PLAINTIFF'S SHOULD BE DENIED BECAUSE THE ISSUES RAISED ARE NOT ADDRESSED IN THE UNDERLYING MOTION (The order of the arguments from plaintiff's memorandum of law is reversed for purposes of clarity and efficiency.) Plaintiff's motion for reargument should be denied because it does not address issues from the underlying motion. "A motion for leave to reargue 'shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in the prior motion, but shall not include any matters of fact not offered on the determining motion' " CPLR prior (Grimm v Bailey, 105 AD3d 703, 704, [2d Dept 2013], quoting 6 6 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 2221 [d] [2]}; (see Matter of American Alternative Ins. Corp. v Pelszynski, 85 AD3d 1157, 1158 [2d Dept 2011]). "While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues presented" previously decided, or to present arguments different from those originally (Matter of Anthonyl Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011] [citations and internal quotations omitted]). The issue of iñcapacity under BCL §1312 was resolved in the underlying motion, here; Atlantic is attempting to introduce legal arguments that were not made in the underlying motion. In plaintiff's opposition to Eastern's cross-motion and reply, plaintiff claimed that they were eligible to write surplus line insurance policies. In the underlying motion the issue that was litigated was whether Atlantic was doing business for purposes of BCL §1312 (a), which would have affected its ability to maintain the cause of action. None of these issues were overlooked or misappreheaded in the decision and order dated July 2, 2019 and entered July 23, 2019. Atlantic is now attempting to litigate a different issue, whether it was authorized to issue a particular policy as an excess line carrier. New questions which, were not previously advanced, may not be raised on a motion to reargue (Levi v Utica First Insurance Company, 12 AD3d 256, 258, [1st Dept 2004]). Moreover, a court should view the evidence in the light most favorable to the nonmoving party (see Leon v Martinez, 84 NY2d at 87-88 [1994]; see also Raju v Cortlandt Town Center, 38 AD3d 874, 834 N.Y.S.2d 211 [2d Dept 2007].) Thus, the issues raised in the 2221 motion were not part of the underlying motion and therefore improper for purposes of the motion to reargue. 7 7 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 MOTION" IL PLAINTIFF'S "OMNIBUS BRANCH TO DISMISS DEFENDANT'S SIXTH AFFIRMATIVE DEFENSE OF INCAPACITY TO MAINTAIN ACTION SHOULD BE DENIED AS PLAINTIFF MOVANT FAILS TO PROVIDE THE STATUTORY AND ADMINISTRATIVE REQUIREMENTS DOCUMENTATION AS CITED BY PLAINTIFF IN ITS OWN MOTION (The order of the arguments from plaintiff's memorandum of law is reversed for purposes of clarity and efficiency.) Plaintiff's motion to dismiss or strike Eastern's sixth affirmative defense, incapacity to maintain this action, should be denied. For purposes of this CPLR 3211(b) motion, plaintiff is providing clarification of a possible exemption from the restriction of authorization to do business in the State of New York. As stated in the court order "Atlantic's capacity to maintain this action apparently turns on whether or not Atlantic business' actually 'does in New York. This presents a question of fact that precludes juncture." dismissal at this (See NYSCEF Doc. No. 39, Decision and Order on Motion, p.6.) The plaintiff provided Insurance Law §2105 and Regulation 41 from the Department of Financial Services ("DFS"), which provides an exception for excess line carriers to issue insurance policies in this State. There are various exceptions, the one at bar regards primary geñêral liability coverage. Eastern reviewed and concurs with the correct applicability of aforementioned statute and regulations. Insurance Law §2105 (h) states that an excess line broker may procure an insurance policy from an insurer not authorized to issue a policy in this State "where such broker, after diligent effort, could not procure substantially similar coverage from an state." insurer authorized to do business in this The Department of Financial Services, interpreting Insurance Law §2105, has issued regulatory requirements. 8 8 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 Excess Line Carrier Prohibitions: DFS Regulation 41 prohibits an excess line broker from procuring "coverage from an unauthorized insurer and the unauthorized insurer shall not provide coverage if the coverage is prohibited by law, including if the coverage: (1) does not constitute insurance within the rneaning of section 1101 or other sections of the Insurance Law; (2) involves a kind of insurance not authorized under section 1113 or other sections of the Insurance Law; (3) is not within the scope of section 2105 of the Insurance Law; (4) is determined by any Appellate Division of the New York State Supreme Court or the New York State Court of Appeals to be against public policy in this State; or(5) has been law" otherwise proscribed by (11 N.Y.C.R.R. 27.11(a)) DFS Regulation 41 also states that "[a]n excess line broker shall not solicit for, bind coverage on behalf of, or act as an agent or representative of, an unauthorized insurer, except as provided for in section 27.4 Part." of this (11 N.Y.C.R.R. 27.11(c)) Under DFS Regulation No. 41 an excess line broker may procure an insurance policy from an insurer not authorized to issue a policy in this State if the "risk has been declined at least three authorized insurers, each of which is authorized in this State to by write insurance of the kind requested and is an insurer that the excess line broker has reason to believe might consider writing the type of coverage or class of insurance involved."(11 N.Y.C.R.R. 27.3(a)) Additionally, an affirming broker is required to have an affidavit "the information relied upon that formed the basis of such licensee's stating or affirming broker's reason to believe that the authorized insurer might consider writing involved." the type of coverage or class of insurance (11 N.Y.C.R.R. 27.3(b)) 9 9 of 12 FILED: KINGS COUNTY CLERK 10/04/2019 06:40 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/04/2019 Plaintiff failed to produce or allege compliance with Insurance Law §2105 (h) and the aforementioned Regulation No. 41, leaving the court's current determination of a factual issue unresolved. Plaintiff in its motion also failed to produce any documentation to support the factual arguments therein. Atlantic failed to produce or allege plaintiff's insurance broker's affidavit. Additionally, Atlantic failed to produce or allege documentation of the declinations as required. Under the DFS Regulation 41 an excess line broker has an affirmative obligation to "keep a complete and separate record of all policies procured from unauthorized insurers under its excess line license. Where declinations are required, the excess line broker and the producing broker shall maintain files supporting declinations broker." by authorized insurers obtained by such excess line or producing (11 N.Y.C.R.R. 27.3(f)) Atlantic has not produced or alleged the three declination reco