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Safeco Insurance Company of America v. M.E.S.

March 30, 2011

SAFECO INSURANCE COMPANY OF AMERICA, PLAINTIFF,
v.
M.E.S., INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Ross, United States District Judge

NOT FOR PRINT OR ELECTRONIC PUBLICATION

OPINION & ORDER

On July 30, 2009, plaintiff Safeco Insurance Company of America ("Safeco" or "plaintiff") filed a complaint in the instant case against defendants M.E.S., Inc., M.C.E.S., Inc., and George Makhoul (collectively, "MES defendants"), and defendants Hirani Engineering & Land Surveying, P.C. ("Hirani Engineering"), Hirani/MES JV, Jitendra S. Hirani, and Sarita Hirani (collectively, "Hirani defendants" and, together with MES defendants, "defendants"). The complaint asserts multiple claims arising from written Indemnity Agreements among the parties. Presently before the court is Hirani defendants' motion for reconsideration of the court's March 22, 2011 Order, Dkt. No. 161, denying Hirani defendants' motion for modification of the court's December 30, 2010 Order, Dkt. No. 148. For the reasons set forth below, Hirani defendants' motion is denied.

BACKGROUND

The court presumes familiarity with the background set forth in its March 22, 2011 Order. Dkt. No. 161 at 1-8. As stated there, the financial condition of Hirani defendants was a critical issue before the court when it ruled upon defendants' motion for a stay pending appeal of the court's November 22, 2010 Order. In the December 17, 2010 Order granting defendants' motion, the court noted that Hirani defendants had failed to submit adequate documentation regarding their finances; however, based upon the documentation submitted by Safeco, the court determined that Hirani defendants had sufficient assets to post a $1 million bond pending appeal. Thus, the court ordered Hirani defendants to post that bond prior to the issuance of the stay.

On December 28, 2010, Hirani defendants asked the court to reconsider the amount of the $1 million bond set in the court's December 17 Order on the grounds that they were financially incapable of posting such a bond. That day, the court held a telephone conference regarding Hirani defendants' motion. At that conference, the court stated:

I think I ought to start by noting that the entire manner in which the Hirani defendants have handled the issue of the stay in this case, I have found extraordinarily frustrating. When the stay was first sought in early December, at a time when it was clear that the central issue relating to the stay or the circumstances of the stay or the conditions of the stay related to the defendants finances and the defendants' ability or inability to secure a bond or other collateral, the papers that I received from the Hirani defendants discussed only the individual defendants finances. They make absolutely no reference at all to the financial situation of Hirani Engineering . . . . And [Hirani] defendants omitted that evidence, notwithstanding that the burden . . . was . . . on Hirani [defendants] to establish a real limitation on [their] ability to post security. And it was only after I then relied on financial information provided to me by Safeco that Hirani [defendants are] claiming that [they are] not in a position to post a million dollar bond. I mean even now, there is no affirmative statement of what [Hirani] defendants could do. There is simply an assertion that Hirani Engineering can't post as much as one million dollars because it would be necessary to have a million dollars in cash and it doesn't have a million dollars in cash.

I think we have really bent over backwards to give defendants in this case an opportunity to present hard evidence of what they can do and what they legitimately can't do. Looking at this current set of papers that we just got in the last couple of hours, the [Hirani] defendants offered to post a partial bond . . . . They don't disclose any amount of a partial bond. They don't give us any evidence justifying a limitation. They suggest that I come up with some alternative arrangement. They are entirely without information or without suggestion as to what such an alternative arrangement might be.

Let me say that as far as I'm concerned I am justified now in denying the motion for reconsideration because none of this was brought to my attention when it should have been brought to my attention. Instead, it's just been dragged out and frankly as legal matter, I think it's appropriate to look at this as [Hirani] defendants lost their opportunity to establish any limitation on the security they could post because they have raised this issue again much too late and even then in the most vague, useless manner.

So let me simply say as far as I'm concerned I'm going to try one more time, but this is the last time I'm going to try to address this issue. I have devoted altogether too much time to this case, particularly in light of the determination of the parties, and I think in some respect particularly the defendants, to obfuscate what's going on here.

Transcript of Telephone Conference at 3-5 ("Tr."), Safeco v. M.E.S.,Inc., No. 09-CV-3312 (E.D.N.Y. Dec. 28, 2010). The court then requested a complete list of Hirani defendants' liquid and physical assets "in every location" and relevant backup documentation by 5 p.m. the following day. Tr. at 12.

By Order dated December 30, 2010, the court denied Hirani defendants' motion for reconsideration, finding significant deficiencies in the documentary evidence submitted by Hirani defendants following the telephone conference with the court. Dkt. No. 148 at 8-9. The court, however, granted Hirani defendants an extension of time to post the $1 million bond and established a payment schedule. Id. at 9. The Order required Hirani defendants to post the $200,000.00 equity in Mr. and Mrs. Hirani's home with the court by January 3, 2011, to post $400,000.00 with the court no later than March 4, 2011, and to post the remaining $400,000.00 with the court by May 3, 2011. Id. at 10. The court cautioned that "[f]ailure to abide by this schedule may result in the court revoking the stay issued in its December 17 Order." Id.

On March 2, 2011, two days before the deadline for Hirani defendants to post $400,000.00 with the court, Hirani defendants filed a letter "to notify the Court" that they would not be complying with the schedule set forth in the court's December 30 Order. Dkt No. 154. In their letter, Hirani defendants asked the court to modify the schedule established in its December 30 Order because Hirani defendants were financially incapable of complying.

By Order dated March 22, 2011, the court denied Hirani defendants' motion for modification of the court's December 30 ...


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