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United States District Court, S.D. New York

November 24, 2004.

One Beacon Insurance Co.
A&L Asset Management et al.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

This firm represents the defendant Old Williamsburg Candle Corp. originally formed as New Williamsburg Candle Corp., a Delaware Corporation in the above referenced matter.

This letter is submitted to request an extension of time for defendant to serve answering papers to the motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure made by plaintiff in this action. Plaintiff's motion was filed with this Court on Friday, November 19th and Plaintiff received a copy of said motion on the afternoon of November 19th. It was on Friday afternoon that I was informed by counsel for plaintiff that a motion for summary judgment had been made, at the conclusion of a deposition of non-party witness Eugene Loevinger at counsel for plaintiff's office. I had indicated to counsel John A.V. Nicholetti, Esq. after learning that the motion had been served and filed my desire to enter into briefing schedule in order for defendant to have the adequate opportunity to respond to the motion. Defendant by letter dated November 19, 2004 proposed dates for a scheduling order in connection with the motion and faxed them to counsel. On Monday morning I received a response from counsel for plaintiffs that was faxed to this office on 5:09 p.m. indicating that he would not consent to entering into any briefing schedule and would proceed in accordance with the Federal Rules and local rules of this Court.*fn1

This case is a complex insurance case which in order to respond to the motion will require several affidavits including those of the defendant Old Williamsburg. The majority of our clients reside in Israel, and our chief operating officer is presently traveling in Israel. Additionally, this case involves numerous depositions and also includes 5 transfile boxes of documents. While the parties took the non-party deposition of Mr. Loevinger on November 19th, we will need to obtain the transcript to use in our answering papers, as Mr. Loevinger is a crucial witness to defendant's position. Additionally, the continued deposition of non-party witness Yechiel Bromberg is scheduled to take place today in this office at 2:00 p.m.

  The central issue in connection with this action is the determination of whether non-party Elite Agency is an authorized agent of plaintiff One Beacon and its binding authority pursuant to an agency agreement. Today, counsel for plaintiff faxed a letter to this office identifying for the first time an additional witness with respect to the issue that is presented in its motion. Notwithstanding that plaintiff had knowledge of the agency issues that arose during the deposition of plaintiff by Emanuel Palmieri on September 30, 2004. It is now for the very first time that plaintiff has identified an additional witness it expects to rely on in its case.

  Defendant requests additional time to respond to plaintiff's motion in order to obtain required affidavits as well as the transcripts of the witnesses who have been taken. Additionally, due to this week being the Thanksgiving Holiday it is a reasonable application herein. Defendant's would respectfully request four weeks (December 17, 2004) to respond to submit serve answering papers to plaintiff's motion and plaintiff serve its reply on December 31, 2004. No prior requests for the relief herein made has been requested. Plaintiff One Beacon Insurance Company has not consented to this application.

  We appreciate your assistance in this matter.


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