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 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.