CERTAIN UNDERWRITERS AT LLOYDS of LONDON as subrogee of Fmduneview Designs, LLC v. ASPEN DESIGN & INSTALLATION, INC. et al, 600442/2018, 27 (N.Y. Sup. Ct., Suffolk County Nov. 29, 2018) (2024)

FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED: SUFFOLK COUNTY CLERK 11m2018 04:47 P
`NYSC 3F DOC. NO. 27
`NYSCEF DOC. NO. 27
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`IND
`EX NO.
`600442/2018
`INDEX NO. 600442/2018
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` VYSC
`
` «IIV-4 .D
` 3F:
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`11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`EXHIBIT
`
`66K?)
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED: SUFFOLK COUNTY CLERK 11572018 04:47 P
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
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`INDEX NO. 600442/2018
`INDEX NO- 600442/2018
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`
`
`
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`RnCnIVnD VYSCEF: 11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`From: Tom Scappaticci [maiIto:TScappaticci@mclaughlinstern.com]
`Sent: Monday, November 26, 2018 3:04 PM
`To: Alyssa Herms
`Cc: bahearn©rtplaw.net; Nelson Canter
`Subject: 600442/2018 (CERTAIN UNDERWRITERS AT LLOYDS of LONDON as subrogee of Fmduneview
`Designs, LLC - v. — ASPEN DESIGN & INSTALLATION, INC. et al)
`
`External gender
`
`Be wary of any links, login requests, attachments, or requests for personal or financial
`information that appear below this advisory.
`
`Counsel:
`
`Please see the attached correspondence in connection with the above-referenced matter.
`
`Thomas Scappaticci, Jr., Esq.
`McLaughlin & Stem, LLP
`260 Madison Avenue
`
`New York, NY. 10016
`Tel. 212—448—1 100
`Fax: 212-448-0066
`Direct: 914-948-3041
`
`tscappaticci@mclaughlinstern.cgm
`Email:
`Website:WW
`
`
`
`NOTICE: This e—mail and any attachments may contain legally privileged and/or confidential information.
`it you are not the intended recipient, any dissemination, distribution or copying of this e-mail and its
`attachments is strictly prohibited. it you receive this transmission in error, piease immediately notify the
`sender by telephone or email and permanently delete this email and its attachments and destroy any
`printout thereof. Pursuant to US. Treasury Department reguiations, please be informed that Federai tax
`advice, if any, contained in this communication was not intended to be used and should not and cannot
`be used for the purpose of avoiding taxnrelated penalties that may be imposed under the internal
`Revenue Code.
`
`lMPORTANT NOTiCE: Never trust wiring instructions sent via email. Cyber criminals are hacking and
`spoofing email accounts and sending emails with fake wiring instructions. These emails are convincing
`and sophisticated. Always independently confirm wiring instructions in person or via a telephone call to a
`trusted and verified phone number. Never wire money without double~checking that the wiring instructions
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED: SUFFOLK COUNTY CLERK 11m2018 04:47 P
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`INDEX NO- 600442/2018
`
`
`
`
`
`R«C«IV«D VYSCEF: 11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`
`
`are correct.
`
`

`Certain Underwriters at Lloyd’s London a/s/o FM Duneview
`Designs, LLC v. Aspen Despign & Installation, Inc., et. al.
`MS File No.: 59783.002
`
`Index No.:
`600442/2018
`
`
`
`
`
`
`
`
`
`
`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
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`INDEX NO. 600442/2018
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`RECEIVED NYSCEF: 11/29/2018
`
`MCLAUGHLIN & STERN, LLP
`FOUNDED 1898
`
`260 MADISON AVENUE
`NEW YORK, NEW YORK 10016
`(212) 448–1100
`FAX (212) 448–0066
`www.mclaughlinstern.com
`
`November 26, 2018
`
`MILLBROOK, NY
`GREAT NECK, NY
`WESTPORT, CT
`WEST PALM BEACH, FL
`NAPLES, FL
`
`
`Thomas Scappaticci, Jr., Esq.
`tscappaticci@mclaughlinstern.com
`
`
`
`
`
`
`Via Email: aherms&fbzlaw.com
`Alyssa L. Herms
`Farber Brocks & Zane, LLP
`400 Garden City Plaza, Route 100
`Garden City, New York 11530
`
`
`Re:
`
`
`
`
`Dear Ms. Herms:
`
`As you know, we represent the Plaintiff in connection with the above-referenced matter.
`
`The following is in response to your letter dated August 3, 2018 subject to and without waiving
`all objects set forth in Plaintiff’s previously disclosed discovery responses.
`
`
`PRIVILEGE LOG
`
`Plaintiff respectfully disagrees with your assertion that only liability claim files are
`
`protected from disclosure. Much like a liability claim file is protected as it is produced in
`anticipation of litigation, portions of a property insurers claim file will be similarly protected when
`addressing subrogation. The withheld portions of Plaintiff’s claim file address subrogation and
`are protected from disclosure.
`
`
`DOCUMENTS ALLEGED TO NOT HAVE BEEN PRODUCED
`
`Plaintiff failed to produce a copy of the origin and cause report prepared by its
`1.
`expert, Douglas G. Peterson & Associates, Inc., which is referenced in CIA's reports and is listed
`on plaintiffs privilege log under LLOYDS_000388-395. It is well-settled that an origin and cause
`report is discoverable as it assists the insurance company in determining whether the loss is
`covered under its insurance policy. We demand a copy of the same.
`
`Response:
`
`Plaintiff will comply with the requirements of CPLR 3101(d).
`
`
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`Index No.: 600442/2018
`November 26, 2018
`Page 2 of 4
`
`
`Plaintiff failed to produce the January 16, 2015 e-mail assigning CIA to the claim
`2.
`referenced in CIA's First Report (LLOYDS_000212). We demand a copy of the same.
`
`Response:
`
`
`
`
`Attached.
`
`Plaintiff failed to produce the blueprints referenced in CIA's First Report
`3.
`(LLOYDS_000214). We demand a copy of the same.
`
`Response:
`
`
`Plaintiff continues to search for the requested documents, and will provide such
`documents to the extent they exist.
`
`
`Plaintiff failed to produce the e-mail from Douglas G. Peterson & Associates, Inc.
`4.
`listed as an enclosure in CIA's First Report (LLOYDS_000212). We demand a copy of the same.
`
`Response:
`
`
`Plaintiff continues to search for the requested documents, and will provide such
`documents to the extent they exist.
`
`Plaintiff failed to produce the "original photographs and receipts" or "additional
`5.
`photographs" from Strongwater referenced in CIA's Fifth Report (LLOYDS_000384). We
`demand copies of the same.
`
`Response:
`
`
`
`
`Additional photographs are attached.
`
`6. Plaintiff failed to produce the e-mail from the public adjuster listed as an enclosure in
`CIA's Sixth Report (LLOYDS_000386). We demand a copy of the same.
`
`Response:
`
`
`
`
`Attached.
`
`Plaintiff failed to produce a copy of the invoice from Eric Hovey referenced in
`7.
`CIA's Eighth Report (LLOYDS_000408). We demand a copy of the same.
`
`Response:
`
`
`
`
`All enclosures from CIA’s Eighth Report have been provided.
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`Index No.: 600442/2018
`November 26, 2018
`Page 3 of 4
`
`
`Plaintiff failed to produce Enclosures 2 and 3 listed on CIA's Tenth Report
`8.
`(LLOYDS_000416). We demand copies of the same.
`
`Response:
`
`
`
`Plaintiff continues to search for the requested documents, and will provide
`such documents to the extent they exist.
`
`
`Plaintiff failed to produce a copy of the recorded statement from Fran Moss listed
`9.
`as an enclosure in CIA's Eleventh Report (LLOYDS_000421). We demand a copy of the same.
`
`Response:
`
`
`Plaintiff continues to search for the requested documents, and will provide such
`documents to the extent they exist.
`
`
`Plaintiff failed to produce a copy of CIA's Thirteenth Report. We demand a copy
`
`10.
`of the same.
`
`Response:
`
`
`
`Plaintiff continues to search for the requested documents, and will provide
`such documents to the extent they exist.
`
` 11. Plaintiff failed to produce updated scene photographs listed as an enclosure on CIA's
`Fourteenth Report (LLOYDS_000434). We demand copies of the same.
`
`
`
`Response:
`
`
`Additional photographs are attached.
`
`
`SWORN STATEMENTS IN PROOF OF LOSS
`
`
`
`Plaintiff has produced the only copy of the proof of loss in its possession.
`
`
`Should you wish to discuss this matter further, please do not hesitate to contact me.
`
`Thank you for your attention to this matter
`
`
`Very truly yours,
`
`
`
`
`
`
`
`
`
`
`
`Enclosures
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`MCLAUGHLIN & STERN, LLP
`
`
`
`By:
`
`Thomas Scappaticci, Jr.
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`Index No.: 600442/2018
`November 26, 2018
`Page 4 of 4
`
`cc:
`
`Brian A. A’Hearn (via email)
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED: SUFFOLK COUNTY CLERK 11m2018 04:47 P I
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`INDEX NO- “0442/2018
`RECEIVED NYSCEF: 11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`mmw ~ Entire home/apt
`
`Contact H05
`
`-:u.-:=a+;ahm?‘- an: an
`
`V.
`'
`
`._
`
`‘
`
`'2“;
`
`'v
`
`4*
`
`‘7’
`
`: 3:5
`
`*1
`
`335’ V\
`
`LLOYDS_000442
`
`LLOYDS_000442
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`FROM: Maddox, Brenda
`
`SENT: 01/16/2015
`
`TO: claims@custard.com
`
`
`
`SUBJECT: New Assignment (Claim #:22223, Insured:LLC, Fmduneview Designs, Username:BMADDOX,
`Client Claim#: TBD, DOL: 01/15/2015)Thank you for accepting this new assignment. Please acknowledge
`receipt with contact information for adjuster once assigned.
`
`
`
`Sincerely,
`
`Brenda Maddox
`
`Gibson & Associates PCM, Inc.
`
`P.O. Box 4541
`
`Springfield, MO 65808
`
`417-893-6207 Direct
`
`417.869.4286 fax
`
`bmaddox@gibsonpcm.com
`
`
`
`Outside Assignment IA - 01/15/2015 is attach
`
`LLOYDS_000443
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`Claim Photo
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`CIA File #:
`Customer Claim #:
`Insured/Owner:
`
`809-012312
`22223
`Fmduneview Designs LLC
`
`Date of Loss:
`Adjuster:
`
`01/15/2015
`Sol Order
`
`Photo #: 1
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Overview of the
`insured location:
`790A Dune Road,
`Westhampton
`Beach
`
`Photo #: 2
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Overview of
`damaged flooring
`outside the hallway
`bathroom on the
`first floor.
`
`10/8/2015 10:27:37 PM
`
`CONFIDENTIAL
`
`Page:1
`
`LLOYDS_000444
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`Claim Photo
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`CIA File #:
`Customer Claim #:
`Insured/Owner:
`
`809-012312
`22223
`Fmduneview Designs LLC
`
`Date of Loss:
`Adjuster:
`
`01/15/2015
`Sol Order
`
`Photo #: 3
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Sheetrock on the
`wall and wood trim
`board was removed
`in the hallway in an
`effort to locate
`source of leak.
`
`Photo #: 4
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Rear overview of
`hallway.
`
`10/8/2015 10:27:37 PM
`
`CONFIDENTIAL
`
`Page:2
`
`LLOYDS_000445
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`Claim Photo
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`CIA File #:
`Customer Claim #:
`Insured/Owner:
`
`809-012312
`22223
`Fmduneview Designs LLC
`
`Date of Loss:
`Adjuster:
`
`01/15/2015
`Sol Order
`
`Photo #: 5
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Flex piping within
`the shower wall.
`The leak is coming
`from this area of
`the wall. It is
`suspected the
`shower pan is
`cracked within the
`bathroom.
`
`Photo #: 6
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Close up view of
`area of leak. Water
`leaking from under
`the shower pan and
`over the bottom
`plate of the wall.
`
`10/8/2015 10:27:37 PM
`
`CONFIDENTIAL
`
`Page:3
`
`LLOYDS_000446
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`Claim Photo
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`CIA File #:
`Customer Claim #:
`Insured/Owner:
`
`809-012312
`22223
`Fmduneview Designs LLC
`
`Date of Loss:
`Adjuster:
`
`01/15/2015
`Sol Order
`
`Photo #: 7
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Overview of hall
`bathroom shower.
`
`Photo #: 8
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Built in shelf within
`the shower. The
`shower pan is
`installed up the
`front of the bench
`and along the top of
`the bench.
`
`10/8/2015 10:27:37 PM
`
`CONFIDENTIAL
`
`Page:4
`
`LLOYDS_000447
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`NYSCEF DOC. NO. 27
`Claim Photo
`
`INDEX NO. 600442/2018
`
`RECEIVED NYSCEF: 11/29/2018
`
`CIA File #:
`Customer Claim #:
`Insured/Owner:
`
`809-012312
`22223
`Fmduneview Designs LLC
`
`Date of Loss:
`Adjuster:
`
`01/15/2015
`Sol Order
`
`Photo #: 9
`Date Taken:
`09/29/2015
`
`Taken By:
`Sol Order
`
`Description:
`Cracked bull nose
`tile on the built in
`bench. The insured
`reports damage
`from the tiles
`freezing and being
`lifted.
`
`10/8/2015 10:27:37 PM
`
`CONFIDENTIAL
`
`Page:5
`
`LLOYDS_000448
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FileHandler.com
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`Page 1 of 1
`RECEIVED NYSCEF: 11/29/2018
`
`Jonathan Sisemore
`
`Claims Administrator
`
`From: Bruce Strongwater [mailto:brucestrongwater@hotmail.com]
`Sent: Wednesday, April 29, 2015 9:46 AM
`To: Jonathan Sisemore
`Subject: RE: Thankyou and all involved in bringing closure.
`
`there is one other thing that i forget to mention. Within the policy it should call for work off primacies due to loss of use of about $2500. Since she worked from home she was
`unable to do so. so loss of use, content to complete with sol, pod , and the odds end ends i sent. and work. confirm.
`
`________________________________
`
`From: jsisemore@gibsonpcm.com
`To: brucestrongwater@hotmail.com
`Subject: Re: Thankyou and all involved in bringing closure.
`Date: Wed, 29 Apr 2015 12:28:10 +0000
`
`Great. I will be in the office this afternoon. My little one is having tubes put in his ears. Give me a shout then.
`
`Jonathan Sisemore
`
`Sent from my iPhone
`
`On Apr 28, 2015, at 4:30 PM, Bruce Strongwater <brucestrongwater@hotmail.com> wrote:
`
`Here are a few odds and ends. We can do loss of use and the pod. Tomorrow I'm
`
`Meeting with sol on the content. Confirm thanks
`
`Sent from my iPhone
`
`Begin forwarded message:
`
`From: Fran Moss <franatlap@aol.com>
`Date: April 28, 2015 at 5:00:10 PM EDT
`To: Bruce Strongwater <brucestrongwater@hotmail.com>
`Subject: Thankyou and all involved in bringing closure.
`
`I'll be able to move back home on Saturday.
`
`The last remaining expenses were construction clean up fees 250.00 day@ 3 days
`A propane gas fillup for all construction was 695.00
`Furniture movers -day rate 2 men @ 150 .00 for Friday.
`
`Thank you again
`
`Sent from my iPad
`
`https://filehandler.gibsonpcm.com:8888/filehandler/wcEmail.aspx?WCI=wiEmail&WCE=...
`
`5/6/2015
`
`LLOYDS_000450
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED: SUFFOLK COUNTY CLERK 11m2018 04:47 P I
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`INDEX NO- 600442/2018
`RECEIVED NYSCEF: 11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`
`
`LLOYDS_000451
`
`LLOYDS_000451
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED: SUFFOLK COUNTY CLERK 11572018 04:47 P I
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`INDEX NO- 600442/2018
`RECEIVED NYSCEF: 11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`
`
`LLOYDS_000452
`
`LLOYDS_000452
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED SUFFOLK COUNTY CLERK 11m2018 04 47 P I
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`INDEX NO- 600442/2018
`RECEIVED NYSCEF: 11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`
`
`LLOYDS_000454
`
`LLOYDS_000454
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED: SUFFOLK COUNTY CLERK 11m2018 04:47 P I
`
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`INDEX NO- 600442/2018
`RECEIVED NYSCEF: 11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`{x
`
`Nfiw
`g.
`(WK/Q2?
`
`.
`1100
`
`LLOYDS_000456
`
`LLOYDS_000456
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED
`47P
`SUFFOLK COUNTY CLERK 11m2018 04:
`NYSCEF DOC . NO .
`27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`INDEX NO. 600442/2018
`RECE IVED NYSCEF:
`11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`
`
`LLOYDS 000457
`
`LLOYDS_000457
`
`

`FILED: SUFFOLK COUNTY CLERK 11/29/2018 04:47 PM
`FILED. SUFFOLK COUNTY CLERK 11m2018 04.47 P I
`NYSCEF DOC. NO. 27
`NYSCEF DOC. NO. 27
`
`INDEX NO. 600442/2018
`INDEX NO- 600442/2018
`RECEIVED NYSCEF: 11/29/2018
`RECEIVED NYSCEF: 11/29/2018
`
`
`
`LLOYDS_000459
`
`LLOYDS_000459
`
`

CERTAIN UNDERWRITERS AT LLOYDS of LONDON as subrogee of Fmduneview Designs, LLC v. ASPEN DESIGN & INSTALLATION, INC. et al, 600442/2018, 27 (N.Y. Sup. Ct., Suffolk County Nov. 29, 2018) (2024)

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CERTAIN UNDERWRITERS AT LLOYDS of LONDON as subrogee of Fmduneview Designs, LLC v. ASPEN DESIGN & INSTALLATION, INC. et al, 600442/2018, 27 (N.Y. Sup. Ct., Suffolk County Nov. 29, 2018) (2024)

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References

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