SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 27

Transcription

1 .".,. SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 27 Present: HON. WilLIAM R. lamarca Justice DEREK ARMSTRONG and SHARON ARMSTRONG, Motion Sequence #004, #005 Submitted May 6, 2004 Plaintiffs, INDEX NO: 3846/02 -against- CALIBER ONE INSURANCE COMPANY Defendant. The following papers were read on these motions: Notice of Motion... Notice of Cross-Motion and Opposition... Reply.... Reply Affi rmation... Plaintiffs, DEREK ARMSTRONG and SHARON ARMSTRONG, move to strike defendant's Answer pursuant to CPLR for failure to produce witnesses for depositions and for counsel fees on the motion. Defendant, CALIBER ONE INSURANCE COMPANY (hereinafter referred to as "CALIBER ONE"), opposes the motion and crossmoves to extend the time to fie the Note of Issue. The motion and cross-motion are determined as follows:

2 This action arises out of a claim for fire damage in the sum of $605, allegedly sustained to plaintiffs' home, located at 89 Surrey Lane, Hempstead, New York, on March 26, CALIBER ONE issued a policy of insurance to plaintiff, DEREK ARMSTRONG, effective August 30, 2000, which was underwritten by their agent, HEATHER BLUM of BRAISHFIELD ASSOCIATES, INC. (hereinafter referred to as " BRAISHFIELD"), pursuant to an agreement between them entitled "Caliber One Indemnity Company Program Administrator Agreement Number 1003", which gave binding authority to BRAISHFIELD. Defendant has denied plaintiffs insurance claim based upon its belief that they contributed to and were involved in setting the fire at their home. Further, in response to plaintiffs Complaint, defendant has asserted various affrmative defenses alleging that the plaintiffs materially misrepresented and/or failed to disclose material facts and circumstances relating to the procurement of the subject Policy, # zho , including the property loss history, the insureds' prior loss history and their financial history as set forth on the application for insurance. Said application was submitted to plaintiffs ' broker, the KOMARA AGENCY, who, in turn, submitted the application to BRAISHFIELD where associate HEATHER BLUM, on the basis of the information contained in the application, decided to bind CALIBER ONE for a homeowner s policy for a one year term. Plaintiffs now assert that CALIBER ONE has failed to produce an underwriter and a claims representative at scheduled depositions and has failed to make NANCY CREDIDO and the KOMARA AGENCY available for a deposition, the broker who solicited plaintiffs and procured insurance on their behalf. It is plaintiffs position that CALIBER ONE maintained a business relationship with NANCY CREDIDO and the KOMARA AGENCY and that CALIBER ONE previously represented that they would produce saiq non- party

3 .. witnesses. In opposition, CALIBER ONE states that depositions, scheduled and confirmed for September 9 and 10, 2003, were unilaterally cancelled by plaintiffs despite the numerous conversations with plaintiffs' representative, RICKY CAPOZZA, to insure the availability of plaintiffs' counsel, JOSHUA MALLIN, on said dates. Indeed, September 1 (f was the time chosen by JOHN KOMARA, the non-party witness and principle ofthe KOMARA AGENCY, who had agreed to be available on said date. MR. KOMARA had advised that NANCY CREDIDO no longer worked for him and his counsel, ROBERT P. WORDEN, JR., of LAWRENCE, WORDEN & RAINIS, P., had stated that he does not represent NANCY CREDIDO and had no notice of any service being effectuated on her with regard to giving testimony. It is defendant' s position that neither NANCY CREDIDO nor her employer KOMARA INSURANCE AGENCY, is a CALIBER ONE agent or broker, and that they have no control over them sufficient to produce them. Nonetheless, CALIBER ONE asserts that they have tried to obtain the cooperation of all necessary witnesses, including JOHN KOMARA and HEATHER BLUM, who resides in Florida and who has agreed to make herself available, and ROBERT GAMBELL, the supervisor of the then claims adjuster, MR. MARTIN, who left the employ of CALIBER ONE more than a year ago and is presently residing in California. Defendant states that it provided MR. MARTIN's address to plaintiffs counsel but that CALIBER ONE has have no control over him as he is outside the jurisdiction of the Court and would not oppose any applications for an open commission to take MR. MARTIN' s deposition in California. CALIBER ONE urges that plaintiffs' motion be denied as it has attempted to meet its discovery obligations but has been thwarted by plaintiffs' counsels' inaction and failure to respond. After a careful reading of the parties

4 and counsel's submissions, it is hereby ORDERED, that plaintiffs' motion to strike defendant's Answer and for counsel fees on the motion is denied. The requested relief is inappropriate absent a clear showing that the failure to comply with discovery demand is willful Harris, contumacious, or in bad faith. v. City of New York 211 AD2d 663m 622 NYS2d 289 (2 Dept. 1995). The striking of an Answer is an extreme and drastic remedy which should not be invoked where, as here, the moving affdavit fails to show conclusively that the default in appearing at an Examination Before Trial was deliberate and contumacious. Rodriguez v. Sklar 56 AD2d 537, 391 NYS2d 423 Dept. 1977). No such showing has been made herein and the record supports the conclusion that defendant has made a good faith effort to comply with plaintiffs demands and that plaintiffs' counsel contributed to the delay in completing depositions; and it is further ORDERED, that a Compliance Conference shall be held before the undersigned in Part 27 on September 14, 2004 at 9:30 A.M., 100 Supreme Court Drive, Mineola, New York 11501, at which time a time schedule for any outstanding discovery wil be discussed. This matter has been stayed by the Second Department pending determination of an appeal by defendant with respect to a prior Order of the Court (Segal ). The Appellate Division decision was rendered on March 8, 2004 and completion of this action, which bears a 2002 Index Number, is now pressing; and it is further ORDERED that defendant's motion to extend the time to file a Note of Issue is granted to the extent that same will be scheduled at the Compliance Conference directed herein.

5 All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. Dated: August 16, 2004 R. LaMARCA, J. TO: Weg and Myers, PC Attorneys for Plaintiffs 52 Duane Street New York, NY Clausen Miller, PC Attorney for Defendant One Chase Manhattan Plaza New York, NY ENTERED AUG 2 3 1QO' armstrng-cllberone.#04.#05lcplr 8)NT NASSAU coun' CL.eRK'1 OF \ei