On May 11, 2018 a
Motion-Secondary
was filed
involving a dispute between
Zurich American Insurance Company,
and
First Specialty Insurance Corporation,
Western Beef Properties, Inc.,
Western Beef Retail, Inc.,
for Commercial - Insurance
in the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 10/18/2019 04:03 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/18/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTRY OF NEW YORK
ZURICH AMERICAN INSURANCE COMPANY, Index No. 652336/2018
Plaintiffs,
-against-
FIRST SPECIALTY
INSURANCE CORPORATION'S
FIRST SPECIALTY INSURANCE CORPORATION,
AFFIRMATION IN
WESTERN BEEF RETAIL, INC. and WESTERN BEEF
OPPOSITION TO ZURICH'S
PROPERTIES, INC.,
|RENEWED MOTION TO
Defendants
COMPEL NON-PARTY
ROBERT E. BROWN, P.C. TO
COMPLY WITH ZURICH'S
SUBPOENA
1. Michael H. Passman, an attorney duly admitted pro hac vice to practice before
this Honorable Court, hereby affirms under penalties of perjury. I am a partner of the firm of
BatesCarey LLP, attorneys for defcñdañt First Specialty Iñsurañcc Corporation ("FSIC"), and I
am F==h with the facts of this matter and make this affirmation in opposition of the Rcñcwed
Motion to Compel (the "Rcñcwcd filed plaintiff Zurich American Insurance
Monen") by
Con-pany ("Zurich") to produc6en of doc==cnts from the non-party Robert E. Brown, P.C. (the
"Brown Law Firm").
2. Zurich has filed this lawsuit to obtain reimbursement from FSIC and two other
def = Westem Beef Inc. and Westem Beef Inc. "Westem
'==ts, Retail, Properties, (together,
Beef"). Zurich seeks to recover arnounts allegedly incurred defending and indemnifying its
insured, Serota Rõõsevelt, LLC ("Serota"), in connection with an underlying lawsuit styled
Desmond Garrett v. Serota Roü5évilt LLC, et al.(the "Garrett Action").
3. In the Garrett Action, the Brown Law Firm represented Serota and Western Beef.
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FILED: NEW YORK COUNTY CLERK 10/18/2019 04:03 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/18/2019
4. In the Renewed Motion, Zurich is seeking to compel the Brown Law Firm to
ce-- cleha
disclose privileged a±ions that Zurich believes will support its In support of its
Rcñcwcd Motion, Zurich has obtaiñcd a waiver of privilege from Serota.
5. FSIC joins Western Beef's opposition to Zurich's Renewed Motion. For much of
the pad-ey of the Garrett Action, the Brown Law Firm jointly represented Serota and Westem
Beef. Therefore, the privilege that sitaded to many of the documcats in the possession of the
Brown Law Firm is held by, or at least jointly held by, Westem Beef.
6. Zurich has not cited any authority stañdiñg for the proposition that, when an
attorney jointly represents two clients, the waiver of privilege by one client effectuates a waiver
of the second client's privilege. Accordingly, Serota's waiver of privilege does not waive
Westem Beef's privilege.
7. Wherefore, to the extent Zurich is seeking dec-ents for which the privilege
a*aching is held by Western Beef or jointly held by Western Beef, FSIC respectfully requests
that this Honorable Court deny Zurich's Moden and award such other relief as the court deems
appropriate.
Dated: October 18, 2018 FIRST SPECIALTY INSURANCE CORPORATION
By:
ADAM H. FLEISCHER, ESQ.
MICHAEL H. PASSMAN, ESQ. (admitted PHV)
BatesCarey LLP
191 N. Wacker, Suite 2400
Chicago, IL 60606
(312) 762-3100 (Telephone)
(312) 762-3200 (Facsimile)
2
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FILED: NEW YORK COUNTY CLERK 10/18/2019 04:03 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/18/2019
GREGG D. WEINSTOCK, ESQ.
ROSEANN DRISCOLL, ESQ.
Vigorito, Barker, Porter & Patterson, LLP
300 Garden City Plaza, Suite 308
Garden City, NY 11530
(516) 282-3355 (Telephone)
(516) 908-4960 (Facsimile)
3
3 of 3
Document Filed Date
October 18, 2019
Case Filing Date
May 11, 2018
Category
Commercial - Insurance
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FILED: NEW YORK COUNTY CLERK 10/18/2019 04:03 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/18/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTRY OF NEW YORK ZURICH AMERICAN INSURANCE COMPANY, Index No. 652336/2018 Plaintiffs, -against- FIRST SPECIALTY INSURANCE CORPORATION'S FIRST SPECIALTY INSURANCE CORPORATION, AFFIRMATION IN WESTERN BEEF RETAIL, INC. and WESTERN BEEF OPPOSITION TO ZURICH'S PROPERTIES, INC., |RENEWED MOTION TO Defendants COMPEL NON-PARTY ROBERT E. BROWN, P.C. TO COMPLY WITH ZURICH'S SUBPOENA 1. Michael H. Passman, an attorney duly admitted pro hac vice to practice before this Honorable Court, hereby affirms under penalties of perjury. I am a partner of the firm of BatesCarey LLP, attorneys for defcñdañt First Specialty Iñsurañcc Corporation ("FSIC"), and I am F==h with the facts of this matter and make this affirmation in opposition of the Rcñcwed Motion to Compel (the "Rcñcwcd filed plaintiff Zurich American Insurance Monen") by Con-pany ("Zurich") to produc6en of doc==cnts from the non-party Robert E. Brown, P.C. (the "Brown Law Firm"). 2. Zurich has filed this lawsuit to obtain reimbursement from FSIC and two other def = Westem Beef Inc. and Westem Beef Inc. "Westem '==ts, Retail, Properties, (together, Beef"). Zurich seeks to recover arnounts allegedly incurred defending and indemnifying its insured, Serota Rõõsevelt, LLC ("Serota"), in connection with an underlying lawsuit styled Desmond Garrett v. Serota Roü5évilt LLC, et al.(the "Garrett Action"). 3. In the Garrett Action, the Brown Law Firm represented Serota and Western Beef. 1 of 3 FILED: NEW YORK COUNTY CLERK 10/18/2019 04:03 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/18/2019 4. In the Renewed Motion, Zurich is seeking to compel the Brown Law Firm to ce-- cleha disclose privileged a±ions that Zurich believes will support its In support of its Rcñcwcd Motion, Zurich has obtaiñcd a waiver of privilege from Serota. 5. FSIC joins Western Beef's opposition to Zurich's Renewed Motion. For much of the pad-ey of the Garrett Action, the Brown Law Firm jointly represented Serota and Westem Beef. Therefore, the privilege that sitaded to many of the documcats in the possession of the Brown Law Firm is held by, or at least jointly held by, Westem Beef. 6. Zurich has not cited any authority stañdiñg for the proposition that, when an attorney jointly represents two clients, the waiver of privilege by one client effectuates a waiver of the second client's privilege. Accordingly, Serota's waiver of privilege does not waive Westem Beef's privilege. 7. Wherefore, to the extent Zurich is seeking dec-ents for which the privilege a*aching is held by Western Beef or jointly held by Western Beef, FSIC respectfully requests that this Honorable Court deny Zurich's Moden and award such other relief as the court deems appropriate. Dated: October 18, 2018 FIRST SPECIALTY INSURANCE CORPORATION By: ADAM H. FLEISCHER, ESQ. MICHAEL H. PASSMAN, ESQ. (admitted PHV) BatesCarey LLP 191 N. Wacker, Suite 2400 Chicago, IL 60606 (312) 762-3100 (Telephone) (312) 762-3200 (Facsimile) 2 2 of 3 FILED: NEW YORK COUNTY CLERK 10/18/2019 04:03 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 10/18/2019 GREGG D. WEINSTOCK, ESQ. ROSEANN DRISCOLL, ESQ. Vigorito, Barker, Porter & Patterson, LLP 300 Garden City Plaza, Suite 308 Garden City, NY 11530 (516) 282-3355 (Telephone) (516) 908-4960 (Facsimile) 3 3 of 3