FILED: NEW YORK COUNTY CLERK 01/19/ :26 PM INDEX NO /2014 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 01/19/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HAYDEN ASSET VIII, LLC, Plaintiff -against- ' AFFIRMATION IN OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PUBLIC SERVICE MUTUAL INSURANCE Index No.: M17W20M COMPANY, Defendant. Thomas H. Curran, being duly sworn, hereby deposes and says: 1. I am a member of the firm Curran Antonelli, LLP, attorneys for Plaintiff Hayden Asset VIII, LLC ("Plaintiff" or "Hayden", and as such am fully familiar with the facts and circumstances of this action. 2. I submit this affidavit in opposition to Defendant Public Service Mutual Insurance Company ("Defendant" or "PSMIC"'s motion to compel Plaintiff to make the property located "Property" at 1770 Berlin Turnpike, Wethersfield, CT (the "Property" available for inspection by Compel" Defendant's sprinkler consultant (the "Motion to Compel". BACKGROUND 3. Defendant issued Plaintiff's predecessor in interest, Carmen Anthony Restaurant "Policy" Group, LLC ("CARG" an insurance policy (the "Policy" which included CARG as a loss payee on the Property. (See Connell Aff. Ex. 1 [Policy]. 4. On or about January 6, 2014, a loss occurred at the Property stemming from damage to the restaurant's sprinkler system and/or water pipes causing hundreds of thousands of dollars in damages. (See Compl. $ 1. 1 of 5

2 5. On January 7, 2014, CARG submitted a claim to Defendant for the damage to the Property. (See Connell Aff. Ex. 4 [Claim]. 6. On July 30, 2014, Defendant denied CARG's claim for coverage. (S_ee Connell Aff. Ex. 5 [Denial of Coverage]. 7. On November 25, 2015, Plaintiff commenced this action against Defendant by Summons and Complaint seeking declaration of coverage under the Policy. (.SSeg Connell Aff. Ex. 2 [Summons & Complaint]. 8. On March 16, 2017, the Circuit Court of Cook County, Illinois County Department, Chancery Division issued an Order of Rehabilitation (the "Order of Rehabilitation" Rehabilitation", whereby all persons with notice were enjoined from maintaining any action against Defendant. 9. On May 16, 2017, Plaintiff and Defendant entered into a Stipulation Consenting to Stay pursuant to the Order of Rehabilitation, which the Court so-ordered on May 18, (See Connell Aff. Ex. 6 [Stipulation Consenting to Stay]. 10. On September 22, 2017, Plaintiff and Defendant entered into a Stipulation Lifting Stay, which the Court so-ordered on November 2, (See Connell Aff. Ex. 7 [Stipulation Lifting Stay]. 11. Defendant filed the Motion to Compel, Affirmation in Support of Defendant's Motion to Compel, and related exhibits with the Court on January 2, A true and correct copy of the Motion to Compel and Affirmation in Support of Defendant's Motion to Compel is annexed hereto as Exhibit A. 2 of 5

3 ARGUMENT 12. On May 7, 2015, the Court entered a Preliminary Conference Order demanding that "discovery and inspection shall be served by Defendant before 5/17/15." 5/I (Emphasis added. Moreover, the Court ordered the end date for all disclosures to be September 18, A true and correct copy of the Preliminary Conference Order is annexed hereto as Exhibit B. 13. Defendant did not demand inspection of the Property before May 17, On June 30, 2016, the Court entered a Compliance Conference Order, whereby the Court specifically ordered (i Plaintiff to respond to Defendant's December 1, 2015 and December 11, 2015 discovery demands, and (ii Defendant to respond to Plaintiff's February 2, 2015 discovery demands. The Court did not extend the expiration of Defendant's ability to demand inspection of the Property. A true and correct copy of the Compliance Conference Order is annexed hereto as Exhibit C. 15. On October 13, 2016, Plaintiff and Defendant entered into a Stipulation Order, whereby in relevant part Defendant agreed to respond to Plaintiff's discovery demands, and the parties "reserved the right to serve supplemental discovery demands if [the] original production is deficient, or if the original production reveals [the for additional discovery." (Emphasis added. The parties did not stipulate to an extension of Defendant's ability to demand inspection that expired on May 17, A true and correct copy of the October 13, 2016 Stipulation Order is annexed hereto as Exhibit D. 16. Neither Defendant's Motion to Compel nor Affirmation in Support of Defendant's Motion to Compel mention the deficiency of the original production or the original production's revelation of a need for additional discovery. Therefore, Defendant's demand for 3 of 5

4 inspection of the Property does not constitute "supplemental discovery" pursuant to the October 13, 2016 Stipulation Order. 17. On March 9, 2017, Plaintiff and Defendant entered into second Stipulation Order, whereby in relevant part the parties agreed to permit "post-ebt document discovery, if any, to be propounded within 14 days after [the] last EBT." A true and correct copy of the March 9, 2017 Stipulation Order is annexed hereto as Exhibit E. 18. To date, neither Plaintiff nor Defendant have conducted any depositions. 19. Defendant first demanded inspection of the Property on November 14, 2017, nearly two-and-a-half-years after Defendant's right to demand inspection expired. (Seee Connell Aff. Ex. 8 [Notice for Discovery & Inspection]. 20. The Court ordered, and the parties stipulated to, specific modifications and continuations of discovery demands on three (3 occasions spanning nearly two (2 years after the inspection period expired, none of which modified or continued the expiration of Defendant's ability to demand inspection of the Property set forth in the May 7, 2015 Preliminary Conference Order. 21. Pursuant to the (i May 7, 2015 Preliminary Conference Order, (ii June 30, 2016 Compliance Conference Order, (iii October 13, 2016 Stipulation Order, and (iv March 9, 2017 Stipulation Order, Defendant's right to demand inspection of the Property expired on May 16, 2015 and has not been modified or continued by court order or stipulation of the parties. 22. Furthermore, even if Defendant was able to demand inspection of the Property, which they are not, Plaintiff sold the Property on May 1, 2017 and thus does not have the ability to grant Defendant access to the Property for inspection or any other means. A true and correct copy of the May 1, 2017 Deed is annexed hereto as Exhibit F. 4 of 5

5 CONCLUSION WHEREFORE, Plaintiff Hayden Asset VIII, LLC respectfully requests that the Court DENY Defendant's Motion to Compel as Defendant's ability to demand inspection of the Property expired by court order on May 16, Dated: January 19, 2018 Curran Antonelli, LLP By: Thomas H. Curran, Esq. Peter Antonelli, Esq. Harry Weiner, Esq. 200 Vesey Street Twenty-Fourth Floor New York, NY P: Attorneys for Plaintiff, Hayden Asset VIII, LLC To: Daniel M. Connell, Esq. Mound Cotton Wollan & Greengrass One New York Plaza New York, NY P: Attorneys for Defendant Public Service Mutual Insurance Company 5 of 5