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.
Preview
FILED: NEW YORK COUNTY CLERK 03/10/2020 12:28 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/10/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ZURICH AMERICAN INSURANCE COMPANY,
Index No.: 652336/2018
Plaintiff,
-against- AFFIRMATION IN SUPPORT
OF ZURICH’S MOTION TO
FIRST SPECIALTY INSURANCE CORPORATION, STRIKE/COMPEL
WESTERN BEEF RETAIL, INC. and WESTERN
BEEF PROPERTIES, INC.,
Defendants.
Gabriel E. Darwick, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the truth of the following, under the penalties of perjury and pursuant
to CPLR § 2106:
1. I am Of Counsel with the firm of Coughlin Duffy LLP, attorney for Plaintiff
Zurich American Insurance Company (“Zurich”) and, as such, am fully familiar with the facts
and circumstances set forth herein, with the source of my knowledge being the records of Zurich
maintained by our office.
2. I submit this affirmation in support of Zurich’s motion pursuant to CPLR § 3126,
striking the answer of Western Beef Retail, Inc. and Western Beef Properties, Inc. (collectively
“Western Beef”) and sanctioning Western Beef in the form of Zurich’s attorney’s fees; (ii)
pursuant to CPLR § 3124, compelling Western Beef and First Specialty to produce all
documents identified on their privilege log; (iii) pursuant to 22 NYCRR 130-1.1, requiring
Western Beef to reimburse Zurich for the attorney’s fees it incurred in connection with Western
Beef’s improper assertion of privilege; and for such other and further relief as this Court may
deem just and proper together with the costs of this motion.
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FILED: NEW YORK COUNTY CLERK 03/10/2020 12:28 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/10/2020
EXHIBITS SUPPORTING THE MOTION
3. The following exhibits are attached hereto.
a. Exhibit “1” is a true copy of an email chain between Western Beef,
Broadspire and the Brown Firm.
b. Exhibit “2” is a true copy of an email chain between Western Beef,
Broadspire, First Specialty and the Brown Firm.
c. Exhibit “3” is a true copy of an email chain between the Brown Firm and
Western Beef.
d. Exhibit “4” is a true copy of the oral argument transcript dated October 29,
2019.
e. Exhibit “5” is a true copy of an email chain between counsel for Zurich and
counsel for Western Beef.
f. Exhibit “6” is a true copy of Western Beef’s privilege log.
g. Exhibit “7” is a true copy of an email from counsel for First Specialty dated
February 25, 2020;
h. Exhibit “8” is a true copy of First Specialty’s privilege log.
WHEREFORE, it is respectfully requested that the Court issue an Order (i) pursuant to
CPLR § 3126, striking Western Beef’s answer and sanctioning Western Beef in the form of
Zurich’s attorney’s fees; (ii) pursuant to CPLR § 3124, compelling Western Beef and First
Specialty to produce all documents identified on their privilege log; (iii) pursuant to 22 NYCRR
130-1.1, requiring Western Beef to reimburse Zurich for the attorney’s fees it incurred in
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FILED: NEW YORK COUNTY CLERK 03/10/2020 12:28 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/10/2020
connection with Western Beef’s improper assertion of privilege; and for such other and further
relief as this Court may deem just and proper together with the costs of this motion.
Dated: New York, New York
March 10, 2020
/s/ Gabriel E. Darwick
Gabriel E. Darwick, Esq.
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Document Filed Date
March 10, 2020
Case Filing Date
May 11, 2018
Category
Commercial - Insurance
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FILED: NEW YORK COUNTY CLERK 03/10/2020 12:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/10/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ZURICH AMERICAN INSURANCE COMPANY, Index No.: 652336/2018 Plaintiff, -against- AFFIRMATION IN SUPPORT OF ZURICH’S MOTION TO FIRST SPECIALTY INSURANCE CORPORATION, STRIKE/COMPEL WESTERN BEEF RETAIL, INC. and WESTERN BEEF PROPERTIES, INC., Defendants. Gabriel E. Darwick, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following, under the penalties of perjury and pursuant to CPLR § 2106: 1. I am Of Counsel with the firm of Coughlin Duffy LLP, attorney for Plaintiff Zurich American Insurance Company (“Zurich”) and, as such, am fully familiar with the facts and circumstances set forth herein, with the source of my knowledge being the records of Zurich maintained by our office. 2. I submit this affirmation in support of Zurich’s motion pursuant to CPLR § 3126, striking the answer of Western Beef Retail, Inc. and Western Beef Properties, Inc. (collectively “Western Beef”) and sanctioning Western Beef in the form of Zurich’s attorney’s fees; (ii) pursuant to CPLR § 3124, compelling Western Beef and First Specialty to produce all documents identified on their privilege log; (iii) pursuant to 22 NYCRR 130-1.1, requiring Western Beef to reimburse Zurich for the attorney’s fees it incurred in connection with Western Beef’s improper assertion of privilege; and for such other and further relief as this Court may deem just and proper together with the costs of this motion. 1741946 1 of 3 FILED: NEW YORK COUNTY CLERK 03/10/2020 12:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/10/2020 EXHIBITS SUPPORTING THE MOTION 3. The following exhibits are attached hereto. a. Exhibit “1” is a true copy of an email chain between Western Beef, Broadspire and the Brown Firm. b. Exhibit “2” is a true copy of an email chain between Western Beef, Broadspire, First Specialty and the Brown Firm. c. Exhibit “3” is a true copy of an email chain between the Brown Firm and Western Beef. d. Exhibit “4” is a true copy of the oral argument transcript dated October 29, 2019. e. Exhibit “5” is a true copy of an email chain between counsel for Zurich and counsel for Western Beef. f. Exhibit “6” is a true copy of Western Beef’s privilege log. g. Exhibit “7” is a true copy of an email from counsel for First Specialty dated February 25, 2020; h. Exhibit “8” is a true copy of First Specialty’s privilege log. WHEREFORE, it is respectfully requested that the Court issue an Order (i) pursuant to CPLR § 3126, striking Western Beef’s answer and sanctioning Western Beef in the form of Zurich’s attorney’s fees; (ii) pursuant to CPLR § 3124, compelling Western Beef and First Specialty to produce all documents identified on their privilege log; (iii) pursuant to 22 NYCRR 130-1.1, requiring Western Beef to reimburse Zurich for the attorney’s fees it incurred in 1554998 2 2 of 3 FILED: NEW YORK COUNTY CLERK 03/10/2020 12:28 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/10/2020 connection with Western Beef’s improper assertion of privilege; and for such other and further relief as this Court may deem just and proper together with the costs of this motion. Dated: New York, New York March 10, 2020 /s/ Gabriel E. Darwick Gabriel E. Darwick, Esq. 1554998 3 3 of 3