Motion-Secondary: Atlantic Casualty Insurance Company v. Eastern Fruit & Vegetables Inc.

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                                FILED:         KINGS       COUNTY         CLERK        10/15/2019             05:08       PM                        INDEX    NO.   510798/2018
   NYSCEF     DOC.   NO.   57                                                                                 RECEIVED      NYSCEF:     10/15/2019




                  SUPREME COURT OF THE STATE OF NEW YORK
                  COUNTY OF KINGS
                   ATLANTIC CASUALTY INSURANCE
                   COMPANY,
                                                                                      Index No.: 510798/2018
                                              Plaintiff,
                                                                                      Hon. Carl J. Landicino, J.S.C.
                   v.
                                                                                      AFFIRMATION IN REPLY TO
                   EASTERN FRUIT & VEGETABLES INC.                                    DEFENDANT’S OPPOSITION
                                                                                      REGARDING MOTION TO
                                              Defendant.                              DISMISS AND/OR REARGUE




                           Debra M. Krebs, Esq. an attorney duly admitted to practice law in the State of New York,

                  affirms the following under the penalty of perjury:

                           1.       I am a partner at the law firm of Keidel, Weldon & Cunningham, LLP, attorneys

                  for  Plaintiff, Atlantic   Casualty    Insurance   Company      (“Atlantic   Casualty”).     As  such,   and  based

                  upon my review of this file, I am fully familiar with the facts and circumstances set forth herein.

                           2.       I submit this affirmation in further support of Atlantic Casualty’s motion seeking

                  an  order:  (1)  pursuant    to CPLR     3211(b)   dismissing    or  striking  Defendant’s     Sixth   Affirmative

                  Defense; and/or (2) pursuant to CPLR 2221 granting reargument of the Court’s order dated July 2,

                  2019 and, upon reargument, amending the order to find that Atlantic Casualty does, in fact, have

                  the capacity to maintain this lawsuit.        More specifically, this affirmation is submitted in reply to

                  Defendant’s opposition

                           3.       As discussed more fully in the accompanying Memorandum of Law, the question

                  of whether the excess/surplus lines broker complied with the requirements of the Insurance Law

                  and/or Article 41 is irrelevant to a determination as to whether Atlantic Casualty has the capacity

                  to bring this lawsuit.     Among other things, any alleged violation by the broker is not attributable



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   FILED:         KINGS       COUNTY         CLERK        10/15/2019             05:08       PM                        INDEX    NO.   510798/2018
   NYSCEF     DOC.   NO.   57                                                                                 RECEIVED      NYSCEF:     10/15/2019




                  to Atlantic Casualty and would have no impact on the validity of the insurance policy or upon the

                  question of whether Atlantic Casualty “does business” in New York.

                           4.       Nonetheless, to satisfy any potential curiosity on the issue, attached are copies of

                  the surplus lines affidavits relating to the insurance policies at issue in this lawsuit.            In particular,

                  the  affidavit  relating  to  policy  L146001424-1       (for  the  2016-2017     policy  period)   is attached   as

                  Exhibit A and a copy of the affidavit relating to policy L146001424-2 (for the 2017-2018 policy

                  period) is attached as Exhibit B.

                           WHEREFORE, Atlantic Casualty respectfully requests an order: (1) pursuant to CPLR

                  3211(b)    dismissing    or striking   Defendant’s     Sixth  Affirmative     Defense;    and/or  (2)  pursuant    to

                  CPLR 2221 granting reargument of the Court’s order dated July 2, 2019 and, upon reargument,

                  amending the order to find that Atlantic Casualty does, in fact, have the capacity to maintain this

                  lawsuit and/or (3) granting Atlantic Casualty such other and further relief as to this Court seems

                  just and proper.

                  Dated:   October 15, 2019
                           White Plains, New York


                                                                        By:      ________________________________
                                                                                 Debra M. Krebs, Esq.




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