Philadelphia Indemnity Insurance Company v. New York Merchants Protective Co., Inc. et al
MEMORANDUM & ORDER, For the foregoing reasons, Plaintiff's 25 Motion for Partial Summary Judgment is GRANTED. By no later than September 15, 2017, the parties are DIRECTED to confer and notify the court in writing as to whether there are any remaining issues requiring resolution in this case and, if not, to file a stipulation of dismissal. So Ordered by Judge Nicholas G. Garaufis on 8/18/2017. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
PHILADELPHIA INDEMNITY INSURANCE
MEMORANDUM & ORDER
-againstNEW YORK MERCHANTS PROTECTIVE CO.,
INC., NMP HOLDINGS CORP.,SHERVIN
ALLEYNE,KARLENE RODRIGUEZ,and RONALD
J. FRIEDMAN,individually and as Receiver for NMP
Holdings Corp. fkaNew York Merchants Protective
NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Philadelphia Indemnity Insurance Company brings this action seeking ajudicial
declaration as to its obligations under an insurance policy issued to the New York Merchants
Protective Company,Inc.("NYMP"). (Compl.(Dkt. 1).) Underlying this action is a state court
action in which Defendant Karlene Rodriguez maintains that Plaintiff is required to indemnify
the driver who injured her.
Before the court is Plaintiffs motion for partial summary judgment(the "Motion"). (See
Mot.for Summ. J.("Mot.")(Dkt. 25).) Ofthe named defendants, only Rodriguez opposes the
motion. (Rodriguez's Opp'n to Mot.("Opp'n")(Dkt. 26).) For the following reasons, the court
GRANTS Plaintiffs Motion.
The facts in this opinion are drawn, where possible,from the parties' statements of
undisputed facts, submitted pursuant to Local Rule 56.1.^ CSee PL R. 56.1 Statement
(Dkt. 25-2)); Rodriguez R. 56.1 Statement(Dkt. 26-1).) See also Holtz v. Rockefeller &Co.,258
F.3d 62,73(2d Cir. 2001)(The court "is not required to consider what the parties fail to point
out in their Local Rule 56.1 statements."(internal quotation marks and citations omitted)). This
opinion relies only on facts in the parties' Rule 56.1 statements that are truly undisputed and
notes any apparent disagreement over any material allegation.
On January 30,2012,Plaintiffissued NYMP a "business automobile policy"(the
"Policy")that covered the period from January 27,2012,through January 27,2013. (PI. R. 56.1
Statement 1.) The Policy provided up to $1 million in commercial automobile liability
coverage to NYMP. (Id ^ 2.) The Policy also listed several "specifically described"
automobiles covered thereunder, including a 2008 Chevrolet Colorado bearing Massachusetts
license plate number M33022(the "Subject Vehicle"). (Id. 1|1[ 3-4.) Plaintiff states that, at the
time the Policy was initiated, NYMP represented that NYMP owned the Subject Vehicle.
Action against NYMP and Sale of the Automobile
In connection with a civil action alleging that NYMP had engaged in a multimillion
dollar fraud, Defendant Ronald J. Friedman was appointed as receiver for NYMP. (Id ^ 17.) By
order ofthe overseeing court, NYMP sold "substantially all" of its assets to NYMP Acquisition,
^ Where the relevant facts are not in dispute, the court cites to the parties' Rule 56.1 statements and omits the
underlying citations to the record.
LLC('TSFYMP Acquisition") on or around February 24, 2012, (Id
Vehicle was among the assets sold in this transaction. (Id
20-22.) The Subject
23-24.) NYMP did not inform
Plaintiffofthis sale prior to May 30,2012. (Id H 26; see also NYMP & Friedman Ans.('TSFYMP
Ans.")(Dkt. 6)H 32.) Following its purchase ofNYMP's assets, NYMP Acquisitions obtained a
commercial automobile insurance policy from the Tower Group Company ofNew York. (See
Ex. E.to Opp'n("Tower Policy")(Dkt. 27-6) at 16.) This policy included $1 million in Uability
The Automobile Accident
On May 30,2012,the Subject Vehicle and an automobile in which Rodriguez was a
passenger were involved in a collision in Brooklyn, New York (the "Collision"). (PI. R. 56.1
Statement ^ 6; see also Rodriguez R. 56.1 Statement at ECF p.3.) At the time ofthe Collision,
the Subject Vehicle was operated by Defendant Shervin Alleyne. (PI. R. 56.1 Statementf 8.) A
contemporaneous police report prepared in connection with the Collision states that the Subject
Vehicle was owned by NYMP and insured by Plaintiff. (Ex. A to Opp'n.("Police Report")
(Dkt. 26-3).) This report notwithstanding, Alleyne states that he was employed by NYMP
Acquisition—not NYMP—at the time ofthe Collision and that he was operating the vehicle in
the course of his employment responsibilities for that company.^ (Alleyne Aff., Ex. B to Mot.
("AUeyne Aff.")(Dkt. 25-6)
The State Action
Rodriguez claimed to have been injured in the Collision and, on November 22,2012, she
brought suit in the Supreme Court ofNew York, Kings County (the "State Action"). (PI. R. 56.1
2 Rodriguez does not directly contest this allegation, but contends that the police report listing NYMP as the owner
ofthe vehicle "raises the permissible inference that Alleyne was employed by[NYMP]at the time ofthe
occurrence." (Rodriguez R. 56.1 Statement at ECF pp.1-2.)
Statement fi 7,13.) She named NYMP,NMP Holdings Corp.,^ Alleyne, and the driver ofthe
car in which she was a passenger as defendants in that suit. (Id H 13.) Plaintiff assigned counsel
to defend NYMP,NMP Holdings, and Alleyne. (Id. ^ 16.)
In connection with the State Action, counsel assigned by Plaintiff to represent NYMP,
NMP Holdings, and Alle5me initially admitted Rodriguez's allegations that, at the time ofthe
Collision:(1)NYMP was the registered owner ofthe Subject Vehicle;(2)Alleyne was an
employee ofNYMP;and(3) Alleyne was operating the subject vehicle with NYMP's
permission, consent, and knowledge and within the scope of his employment."^ (Compare Ex. B
to Opp'n ("State Compl.")(Dkt. 26-4)
Ex. C to Opp'n("State Ans.")
(Dkt. 26-5)11.) NYMP,NMP Holdings, and Alleyne also provided Rodriguez with a
"Supplemental Insurance Disclosure" which stated that those defendants were covered by
Plaintiff under the Policy, and a separate insurance policy providing $4 million commercial
excess coverage. (Ex. C to Opp'n ("Suppl. Ins. Disclosure")(Dkt. 26-6) at ECF p.16.)
Counsel appointed by Plaintiff has represented NYMP,NMP Holdings, and Alleyne in
the State Action since at least April 23,2013 (the date on which those parties filed their answer
in the State Action).^ During this period, the parent company ofNYMP Acquisitions'
commercial automobile insurer went into liquidation proceedings based on a finding that the
insurer was insolvent. (See Ex.F to Opp'n("CastlePoint Liquidation Order")(Dkt. 26-8).)
^ The complaint states that NYMP changed its name to NMP Holdings on January 4,2011. (Compl.^ 9.) This
name change notwithstanding, the parties continue to refer to NYMP and NMP Holdings as distinct entities and do
not further clarify the relationship between them.
* Rodriguez states that NYMP and NMP Holdings moved to amend these statements in their answer on August 1,
2016. (Opp'n at 4.)
^ Plaintiff states that "counsel assigned ... to represent Shervin Alleyne has  been relieved based on the fact that
Shervin Alleyne was not an employee of[Plaintiffs] insured on" the date ofthe accident. (PI. R. 56.1 Statement
^ 16.) Neither party indicates whether counsel appointed by Plaintiff continues to represent NYMP or NMP
Holdings in the State Action, however.
Plaintifffiled the present action on March 29,2016. (See generally Compl.) Plaintiff
seeks judicial declarations that:(1)Friedman, as receiver for NYMP,sold the subject vehicle on
or about February 24,2012;(2)neither NYMP nor NMP Holdings owned the subject vehicle on
May 30,2012,the date ofthe Collision;(3) Alleyne was not an employee ofNYMP or NMP
Holdings on May 30,2012; and(4)Plaintiff has no duty to defend or indemnify NYMP,NMP
Holdings, or Alleyne in the State Action. (Id at EOF pp.7-8.) On April 26,2016,Friedman
answered the Complaint on behalf of himself and NYMP(NYMP Ans.), while Rodriguez
answered separately on April 28, 2016(Rodriguez Ans.(Dkt. 9)). NMP Holdings and Alleyne
have not answered or otherwise appeared in the case.^
Before the court is Plaintiffs motion for partial summary judgment as to its duty to
defend or indemnify NYMP or NMP Holdings in the State Action.^ (See Mot. at 1-2; see
generallv Mem.in Support of Mot.("Mem.")(Dkt. 25-1).) Plaintiff argues that NYMP's sale of
the vehicle before the Collision terminated NYMP's "insurable interest" in that vehicle, releasing
Plaintifffrom any duty to defend or indemnify NYMP or NMP Holdings under the Policy. (Id
at 6-7.) In response,Rodriguez does not claim that the Policy was in force that the time ofthe
Collision, but instead maintains that Plaintiff should be required to provide coverage for NYMP,
^ Friedman's answer lists him as appearing "individually and as Receiver for NMP Holdings Corp. fka New York
Merchants Protective CompanyEngineering [sic], L.P." (NYMP Ans. at EOF p.4). In the answer itself, however,
Friedman only states that he appears "in his capacity as receiver for New York Merchants Protective Co.,Inc." (Id.
at ECF p.l.) As noted,the parties fail to clarify the relationship between NYMP and NMP Holdings, and the court
is unable to determine whether Friedman intended to respond on behalf of both entities.
While Plaintiff appears to present the Motion as seeking summaryjudgment as to all claims, the Motion does not
include any mention ofthe first three declarations sought in its Complaint,i^ the sale or ownership ofthe Subject
Vehicle and Alleyne's employer at the time ofthe Collision. rSee generally Mot.) While the court addresses the
first requested declaration—^the sale ofthe vehicle—as part ofits analysis ofthe issues presented, it declines to reach
the remaining two declarations, which are not squarely presented here. See infra note 8.
NMP Holdings, and Alleyne based on the doctrine ofequitable estoppel. (Opp'n at 5-16.) The
court concludes that, based on the current record. Plaintiff is entitled to declaratory judgment as a
matter oflaw and grants the motion for partial summary judgment.
A court must grant summaryjudgment where "the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(a). "A 'material' fact is one capable ofinfluencing the case's outcome under
governing substantive law, and a 'genuine' dispute is one as to which the evidence would permit
a reasonable juror to find for the party opposing the motion." Fieueroa v. Mazza,825
F.3d 89,98(2d Cir. 2016)(citing Anderson v. Liberty Lobbv,Inc., 477 U.S. 242,248(1986)).
"In determining whether an issue is genuine,'[t]he inferences to be drawn from the
underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the
light most favorable to the party opposing the motion.'" SOW West LLC v. Westport Ins. Corp.,
856 F. Supp. 2d 514,521 (E.D.N.Y. 2012)(quoting Cronin v. Aetna Life Ins. Co.,46
F.3d 196,202(2d Cir. 1995)). "[T]he judge's function is not Q to weigh the evidence and
determine the truth ofthe matter but to determine whether there is a genuine issue for trial."
Redd V. N.Y. Div. ofParole. 678 F.3d 166,173-74(2d Cir. 2012)(quoting Liberty Lobbv,477
U.S. at 249). However,"[a] party may not rely on mere speculation or conjecture as to the true
nature ofthe facts to overcome a motion for summary judgment," and "[m]ere conclusory
allegations or denials ... cannot by themselves create a genuine issue of material fact where
none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166(2d Cir. 2010)(internal
quotation marks and citation omitted).
Plaintiff argues that the undisputed facts demonstrate that the Policy had been terminated
by the time ofthe Collision and Plaintiff is therefore entitled to a declaration that it is under no
duty to defend or indemnify NYMP,NMP Holdings, or Alleyne with respect to the Collision.
(See generally Mem.) Rodriguez,on the other hand, argues that Plaintiff should be equitably
estopped from denying coverage under the Policy based on its three-year delay in claiming that
the Subject Vehicle was not covered by the Policy at the time ofthe Collision. (See generally
Opp'n.) The court concludes that the Policy had been terminated by the time ofthe Collision,
and that Rodriguez fails to make out a sufficient showing of prejudice to the insured parties to
estop Plaintifffrom denying coverage,
Policy Coverage and Equitable Estoppel
As a general rule, an automobile insurer is not subject to a duty to defend or indemnify
insured parties for an accident that occurs while the insurer's policy is not in effect. ^Eagle
Ins. Co V. Zuckerman. 753 N.Y.S.2d 128,129-30(N.Y. App. Div. 2003). One way in which
automobile policy coverage can be terminated is through transfer oftitle to the covered vehicle
by the insured party to another owner. See Allstate Ins. Co v. Santos. 673 N.Y.S.2d 694(N.Y.
App. Div. 1998); Matter of Feliciano, 528 N.Y.S.2d 653,654(N.Y. App. Div. 1988); see also
Phoenix Ins. Co. v. GuthieL 141 N.E.2d 909,911-12(N.Y. 1957)("[Cjoverage created or arising
out ofthe ownership, maintenance or use of a described automobile ceases and terminates with
the transfer ofthe ownership ofthe described automobile, unless notice has been given to the
insurer and the insurer consents to the extension of coverage.")
Moreover,the insured party's sale ofinsured property may deprive them of an "insurable
interest" in that property and so render unenforceable any ostensible obligations on the insurer's
part. Under New York Insurance Law Section 3401,
[n]o contract or policy ofinsurance on property made or issued in this state, or made
or issued upon any property in this state, shall be enforceable except for the benefit
ofsome person having an insurable interest in the property insured. In this article,
"insurable interest" shall include any lawful and substantial economic interest in
the safety or preservation of property from loss, destruction or pecuniary damage.
N.Y. Ins. Law § 3401. "In general a person has an insurable interest in the subject matter insured
where he has such a relation or connection with, or concern in, such subject matter that he will
derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or
damage from its destruction, termination, or injury by the happening ofthe event insured
against." Scarola v. Ins. Co. ofN. Am.,292 N.E.2d 776,111(N.Y. 1972). Where the policy
holder does not have an insurable interest in the insured property, the policy is rendered void and
unenforceable. Azzato v. Allstate Ins. Co., 951 N.Y.S.2d 726,733(N.Y. App. Div. 2012). In
the case of an automobile, a party does not have an insurable interest—and so cannot maintain an
insurance policy—as to that automobile ifthey neither own nor possess the vehicle. See, e.g.,
Pekerv. Allstate Ins. Co.. 787 N.Y.S.2d 383, 384(N.Y. App. Div. 2004).
Against this backdrop,the doctrine of equitable estoppel has only limited application.
Generally speaking, estoppel cannot operate to create insurance coverage where none would
otherwise exist. See, e.g., Sedswick Ave. Assocs. v. Ins. Co. ofthe State of Pa., 610 N.Y.S.2d
39,39(N.Y. App. Div. 1994)("Where there is no coverage under an insurance policy because
the policy was not in existence at the time ofthe accident, estoppel cannot be used to create
coverage.") However, a limited exception to this rule allows equitable estoppel to extend policy
coverage "where an insurer, though in fact not obligated to provide coverage, without asserting
policy defenses or reserving the privilege to do so, undertakes the defense ofthe case,in reliance
on which the insured suffers the detriment oflosing the right to control its own defense." Albert
■T. Schiff Assocs.. Inc. v. Flack. 417 N.E.2d 84, 87 (N.Y. 1980). Injury to the insured party may
not be presumed, and "is established only where the insurer's control of the defense is such that
the character and strategy of the lawsuit can no longer be altered."
Federated Dep't Stores,
Inc. V. Twin City Fire Ins. Co.. 807 N.Y.S.2d 62, 68 (N.Y. App. Div. 2006) (citation omitted).
This prejudice may be found where, for instance, a belated denial of coverage endangers the
insured party's ability to settle a case, implead a party, or where the trial is impending. Hartford
Ins. Grp. V. Mello. 437 N.Y.S.2d 433, 434-35 (N.Y. App. Div. 1981); U.S. Fid. & Guar. Co. v.
N.Y. SusQuehanna & W. Rv. Co.. 713 N.Y.S.2d 624,625-26 (N.Y. App. Div. 2000); Yoda. LLC
V. Nat'l Union Fire Ins. Co. of Pittsburgh. PA, 931 N.Y.S.2d 18,20-21 (N.Y. App. Div. 2011).
The relevant prejudice under this standard is that suffered by the insured party. Insurers
are under no obligation to disclaim coverage to non-insured parties, and a non-insured party
cannot extend an insurer's coverage through equitable estoppel based on such failure to disclaim.
See In re U.S. Snecialtv Ins. Co.. — N.Y.S.3d—, 2017 WL 2800912, at *3 (N.Y. App.
Div. 2017) ("[I]t is clear that equitable estoppel is of no aid to respondent, who was not an
insured under the policy issued by petitioner . . . . Simply put, inasmuch as respondent was not
an insured under the policy issued by petitioner and petitioner did not in fact provide  coverage
to respondent under the terms of the subject policy, petitioner was under no concomitant
obligation to disclaim."). Relatedly, equitable estoppel cannot extend coverage to a party that
lacks an insurable interest in the property to be covered, as "the insurable interest requirement is
statutory [and so] not subject to estoppel." Mikaelian v. Liberty Mut. Ins., No. 15-CV-6182
(JFB) (AYS), 2016 WL 4702106, at *6 (E.D.N.Y. Sept. 8, 2016).
Rodriguez's argument that Plaintiff is bound to provide defense and indemnification to
the insured parties fails. At the outset, it is clear that, at the time ofthe Collision,the Policy was
no longer in force with respect to the Subject Vehicle: NYMP's transfer of title to that vehicle
terminated the Policy, and Plaintiff did not receive notice ofthe transfer or consent to continue
its coverage. ®
Phoenix Ins. Co.,2 N.Y.2d at 589; Santos. 673 N.Y.S.2d at 694.
Rodriguez does not contest this point, but instead argues that the court should estop
Plaintifffrom denying coverage based on its delay in asserting that the Policy had been
terminated and the resulting prejudice to both her and the insured parties. (See Opp'n at 7.) Any
prejudice suffered by Rodriguez is irrelevant, however. Because Rodriguez was not an insured
party. Plaintiff was under no duty to disclaim coverage to her. In re U.S. Specialty Ins. Co., 2017
WL 2800912, at *3, and any prejudice she suffered is outside the scope ofthe equitable estoppel
inquiry, cf Federated Dep't Stores, 807 N.Y.S.2d at 68 (stressing the need to show prejudice to
insured parties). Rodriguez's claims of prejudice to the insured parties—^NYMP and NMP
® Rodriguez does not contest that the Subject Vehicle was sold to NYMP Acquisitions or PlaintifFs assertion that
Plaintiff was not notified ofthat sale. (Compare PI. R. 56.1 Statement 22-26 with Rodriguez R. 56.1 Statement.)
Instead, she contends that statements m the police report documenting the Collision and the initial answer in the
State Action give rise to a "permissive inference" that the Subject Vehicle was owned by NYMP or NMP Holdings,
and that Alleyne was employed by NYMP at the time ofthe Collision. (Rodriguez R. 56.1 Statement at ECF
pp.1-2.) Rochiguez's arguments on these points are difficult to understand in light of her apparent acknowledgment
that the Subject Vehicle had already been sold by the time ofthe Collision. More importantly, those questions are
irrelevant to the present analysis: the uncontested sale ofthe Subject Vehicle without notice to Plaintiffterminated
the Policy as a matter oflaw.
Holdings^—are also unavailing. Despite Rodriguez's arguments on their behalf, those entities
have not come forward to allege that they have in fact been prejudiced by Plaintiffs control of
the litigation. In the absence of concrete allegations of prejudice by the affected parties,
Rodriguez effectively asks the court to presume prejudice on their behalf. This the court cannot
Federated Den't Stores. 807 N.Y.S.2d at 68("Prejudice is not uniformly presumed
[where the insurer takes control ofthe insured's defense], and estoppel will only lie ifthe insured
has demonstrated prejudice by the insurer's actions."(emphasis added)).
Relatedly, the insured parties' failure to intervene on their own behalf results in
uncertainty as to whether those parties suffered any prejudice that would provide a basis to estop
Plaintifffrom denying coverage. Rodriguez argues in general terms that Plaintiffs control over
the defense in the State Action prevented the parties from settling the case before the Tower
Insurance Company's liquidation. (Opp'n at 7.) She does not, however, support this argument
by pointing to facts that indicate that settlement talks occurred, let alone that the disparity in
coverage amounts available under the Policy and afterwards influenced the insured parties'
position in those discussions. Likewise, while Rodriguez contends that Tower Insurance
Company's liquidation may render it unable to satisfy any adverse judgment in the State Action,
' is not clear that either NYMP or NMP Holdings were party to any valid insurance policy with Plaintiff at the
time ofthe Collision. Plaintiff states in its Rule 56.1 statement that NYMP sold all "Automotive Vehicles" three
months prior to the Collision. (PI. R. 56.1 Statement
23-24.) This would seemingly include all ofthe specifically
described automobiles listed in the Policy and so terminate coverage under the policy in its entirety. Some courts
have estopped an insurer from belatedly denying coverage as to particular vehicles possessed by a party with whom
the insurer still had some valid policy. NatT Indem. Co. v. Rvder Truck Rental. 646 N.Y.S.2d 169,170(N.Y. App.
Div. 1996)(indicating that estoppel may be applicable where insurer sought to deny coverage because automobile
was not a "covered vehicle"). Due to the lack offactual development on this specific point, the court assumes for
purposes of this Motion that NYMP and NMP Holdings remain "insured parties" for purposes ofthe equitable
The court does not make the same assumption as to the Alleyne, who was never a party to the Policy. In re U.S.
Specialtv Ins. Co.. 2017 WL 2800912, at *3 (refusing to extend coverage based on equitable estoppel to a
permissible automobile user who was not himself a party to the insurance policy). Accordingly, as with any claimed
prejudice to Rodriguez, prejudice to Alleyne is irrelevant to the equitable estoppel analysis.
she implicitly acknowledges that she lacks any definite insight mto that company's ability to
satisfy any judgment. (See Opp'n at 13(noting "coverage under the Tower policy may or may
not ultimately be available to indemnify Mr. Alleyne for [Rodriguez's] accident, if[Plaintiff] is
successful in this lawsuit").) Absent these speculative premises,the court fmds no basis to
conclude that Plaintiffs control ofthe defense in the State Action harmed the insured parties and
was "such that the character and strategy ofthe lawsuit can no longer be altered." Federated
Dep't Stores. 807 N.Y.S.2d at 68.
Accordingly,the court finds that, as a matter oflaw. Plaintiff was not obliged to cover the
Subject Vehicle under the Policy at the time ofthe Collision, and there is not sufficient prejudice
to estop Plaintifffrom denying such coverage.
For the foregoing reasons. Plaintiffs motion for partial summary judgment(Dkt. 25)is
GRANTED. By no later than September 15,2017,the parties are DIRECTED to confer and
notify the court in writing as to whether there are any remaining issues requiring resolution in
this case and, if not, to file a stipulation of dismissal.
s/Nicholas G. Garaufis
Dated: Brooklyn, New York
NICHOLAS G. GARA
United States District Judge
As a last ditch effort to require Plaintiffto provide coverage, Rodriguez suggests that NYMP's failure to change
the Subject Vehicle's registration should estop Plaintifffrom denying the validity ofthe Policy. (See Opp'n at 6.)
In support of this point, Rodriguez notes a 1957 Court of Appeals case that held "a former owner [is estopped] from
denjdng ownership ofthe vehicle bearing his registration plates at the time ofan accident in violation ofthe statutes
regulating the use ofsuch plates, but only when he is sued in tort by an injured party as the owner ofsuch vehicle."
Phoenix Ins. Co.. 2 N.Y.2d at 587-88. Rodriguez asks the court to extend this rule to estop the insurer from denying
coverage as well. (Opp'n at 6.) As she acknowledges, however,the Court of Appeals declined to extend estoppel
beyond the owner ofthe vehicle to the insurer. Id, at 589. Rodriguez points to no contrary authority, and the court
is obliged to follow the Court of Appeals' determination as to that issue.
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