FILED: NEW YORK COUNTY CLERK 01/08/ :31 PM INDEX NO /2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 01/08/2018 EXHIBIT

Transcription

1 EXHIBIT

2 '!5 V a '<) /5«. ' i (. ( Alison Diamondstein Associate adjanlojldstejn@ib_cclaw.com ee AltomeysatLaw L'Abbate, Balkan, Colavita & Contini, LLP. 1001Franklin Avenue,GardenCity, NeWYork r /F1E December 21, 2017 By mfp@melitoadolfsen.com Michael F. Panayotou, Esq. Melito & Adolfsen P.C. 233 Broadway, Suite 1010 New York, NY Re: American Empire Surplus Lines Insurance Companyv.Colony Insurance Company Supreme Ullpl4lllV Court, VVtkl s) New I 'i% YY York I VlA County (Index sllleal /2016) Dear Mike: As you know, our firm represents Plaintiff American Empire Surplus Lines Insurance Company in the referenced declaratory judgment action. We acknowledge receipt of Defendant Colony Insurance Company's Subpoena Duces Tecum Ad Testificandum dated December 13, Subpoena" 2017 directed to Thomas Kallergis ("Kallergis Subpoena"). The purpose of this letter is to formally object to the Kallergis Subpoena and to demand that Colony withdraw it based upon the substantive grounds set forth below. If this good faith attempt to avoid Court intervention is rejected by Colony, then American Empire will immediately file a motion to quash the Kallergis Subpoena. Additionally, under the circumstances, we will research the merits of seeking costs for Colony unreasonably prolonging resolution of this litigation. As you know, American Empire has held off on filing its summary judgment motion because of Colony's belated demand to conduct the non-party deposition of Akro General Contracting, Inc., the former employer of Clifton Williams, the plaintiff in a construction bodily injury accident that commenced the underlying Williams v. NYCHA Lawsuit pending in Supreme Court, Kings County. At the Court Conference held on October 3, 2017, Hon. Debra James reluctantly allowed Colony to conduct a limited deposition of Akro based upon Colony's claim that additional information relative to Akro's employment of Clifton Williams was necessary on the issue of whether employee status triggered the Colony OCP policy "Exclusion - Injury To Worker" Temporary Worker, Volunteer Worker, Or Casual endorsement (the "Colony OCP Exclusion" Exclusion"). Several months before the Court Conference, you had requested copies of 100EagleRockAvemic,Suite 220,EastHanover,NJ07936 T ( q2(3 )R' if. E 97') zt28,1036 ~i28,10'>6

3 deposition transcript, as well as information (and a copy of any transcripts available) relative to a deposition of Akro in the underlying action. Accordingly, in August 2017, we had provided your office with 50-h transcript and deposition transcript from the underlying action, and advised that it was our understanding that no Akro deposition was conducted in the underlying action. At the October 3, 2017 Court Conference, you then made a request for the non-party deposition of Akro, arguing that the Colony OCP Exclusion may be applicable for Colony to deny coverage to NYCHA based on employment status with Akro. In that regard, you drew attention to page 2 of the Workers Compensation Form - C2-F, which describes the Work Week Type as "Varied Work rather than "Standard Work or "Fixed Work, and argued that Williams could be a "temporary under the Colony OCP Exclusion, in that he might have been hired to "meet seasonal or short-term conditions." James' workload Justice October 3, 2017 Compliance Conference Order stated that Colony "shall serve a subpoena for EBT of the plaintiff's employer (Akro) in the underlying 10/20/17." Clifton Williams Action on or before Akro, the named insured under the American Empire policy, was represented by Julie A. Tribble with Kaufman, Borgeest & Ryan, for the limited purpose of the non-party deposition and produced Akro President John Michelakis. Michelakis as the Akro President, was certainly a witness produced with knowledge of the scope of information set forth in the Subpoena. In that regard, on December 13, Colony deposed Akro's President, Michelakis "regarding the employment of Mr. Clifton Williams and the hiring/employment practices of Akro General hiring," Contracting, Inc. at the time of Mr. as set forth in the scope of the Subpoena issued for Akro's non-party deposition. testimony was responsive to the relevant inquiries, and as made clear by Akro's counsel, no other witness, including Thomas Kallergis, could provide any additional information. For example, Michelakis testified that Williams, who was a Section 3 employee under the NYCHA-Akro Contract, was hired on a full-time basis by Akro (and not just specifically for the subject project in 2014); would have continued to work for Akro past the duration of the subject project depending upon his work ethic; and that he stopped working for Akro on December 4, 2014 after sustaining injuries from the accident. When shown page 2 of the Workers Compensation Form - C2-F, Akro's President testified that he was familiar with these forms and "weather-permitting." that "Varied Work was checked off, meaning Michelakis further testified that he was familiar with how Akro hired employees in 2014, explaining that the employees would need to be OSHA certified, provide verification that they could work on a James' scaffold, and submit applications, identification and OSHA cards. Justice directives at the Court Compliance Conference did not provide for an unlimited fishing expedition by Colony, but were quite limited in nature and were based on Colony's representation on the scope of the deposition. Moreover, the fact that the former Akro project manager, Kallergis, is the individual who signed the Workers Compensation Form - C2-F does not mean that he is the individual with most knowledge of the scope of information sought in the subpoena and, clearly, if you were Kallergis' seeking testimony specifically based upon the signature on that form (which you clearly had in your possession from American Empire's document production in July 2017), that should have been specified in the subpoena prior to deposition.

4 Notwithstanding the foregoing, the non-party deposition of Akro's President Michelakis was completely unnecessary to begin with, based upon the clear language of the Colony OCP Exclusion upon which Colony relies. Significantly, the Colony OCP Exclusion specifically defines, in part, "casual and "temporary, respectively, as follows: a. "Casual means: (1) A person, other than a person furnished to you by a labor union, who acts at the direction of and within the scope of duties determined by any insured, and «' is employed by any insured for a short time and temporary purpose;... (Emphasis supplied.) * * * b. "Temporary means a person who is furnished to you to substitute for a permanent worker on leave or to meet seasonal or short-term workload conditions. (Emphasis supplied.) * * * There can be no dispute that Akro, and not NYCHA, hired Williams, based upon testimony that Akro hired Williams as a Section 3 employee under the NYCHA- Akro contract. Moreover, the documentation that was previously provided to Colony prior to deposition confirms that Akro, and not NYCHA, hired Williams. For example, the Workers Compensation Form - C-2F speaks for itself in that regard, as it sets forth that Williams is an Akro employee. Furthermore, there has been no dispute in the underlying Williams Lawsuit that Williams was an Akro employee, and Williams testified as such during both his 50-h hearing and deposition. With that said, the highlighted portions of the definitions contained within the Colony insured" OCP Exclusion are references to "any and "you". In this regard, the Colony policy defines those terms as follows: Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations... (Emphasis supplied.) "insured" The word means any person or organization qualifying as such under Section II - Who Is An Insured. (Emphasis supplied.) Colony's argument that the Colony OCP Exclusion applies hinges upon a purported issue raised by Colony that Williams may have been hired for a short time and temporary purpose, or to meet seasonal or short-term workload conditions. In addition to this being demonstrably false based on the documents and the testimony of Akro's President, Colony in conducting its deposition fails to see that by its terms, the Colony OCP Exclusion is inapplicable. The key terms in the 3

5 definitions of "casual and "temporary in the Colony OCP Exclusion - the fact insured" "you" that "any or could never refer to employer, Akro, as the Named "insured" Insured under the Colony OCP policy is NYCHA, and Akro does not qualify as an under the Colony OCP policy that it purchased for NYCHA. Akro is the Named Insured under the American Empire policy; not the Colony OCP policy. We look forward to receiving your prompt response and we urge Colony to reconsider its position in this matter. We are hopeful that Colony will withdraw the subpoena seeking the pointless non-party deposition of Thomas Kallergis so that the parties are not required to engage in unnecessary motion practice but can rather reach resolution of the declaratory judgment action without further delay. Very truly yours, L'ABBATE, BALKAN, COLAVITA & CONTINI, LLP Qgg~~. M M~~+yQ~Kc~~ AAD/gf ALISON DIAMONDSTEIN cc: Monte E. Sokol, Esq. msokol@lbcclaw.com Julie A. Tribble, Esq. ~bb«' rmv, 4