JMG Improvements, Inc. v. Arch Specialty Insurance Company et al

Filing 138

ORDER: granting 136 Letter Motion for Extension of Time to File. Application granted. Plaintiff shall file its opposition today. Defendants' application to file a short reply (Dkt. 137) is also granted. Any such reply shall be filed by May 13, 2022. SO ORDERED. (Signed by Judge Ronnie Abrams on 5/06/2022) (ama)

Case 1:20-cv-02882-RA-GWG Document 136 Filed 05/06/22 Page 1 of 2
138

May 6, 2022
VIA PACER ONLY
Honorable Ronnie Abrams, USDJ
Thurgood Marshall United States Courthouse, Courtroom 1506
40 Foley Square
New York, NY 10007
Deputy Phone: [phone]
Chambers Phone: [phone]
Re:

LETTER MOTION Re: Adjournment of Additional Briefing
JMG Improvements, Inc. et ano v. Arch Specialty Insurance Company;
Armour Risk Management, Inc.
Case No. 20-CV-2882 (RA)

Honorable Judge Ronnie Abrams:
Undersigned is counsel for the plaintiff, JMG Improvements, Inc. (“JMG” or “Plaintiff”).
I am writing to request leave to late-file the response brief with respect to the captioned matter.
Due completely to my own mental lapse, I have been laboring under the impression that the
deadline was May 6, today. Mr. Valverde, counsel for Arch, has already filed his response on
May 3, as ordered, and I simply assumed he had filed early. I feel this response is necessary and
will assist the Court for several reasons. First, counsel for Arch has made extensive reference to
Peleus v. Atlantic. We intend to argue that that case was wrongly decided, but will show that it
was not appealed since in that case Peleus actually paid the defense costs, and Atlantic did not
need any indemnity costs paid because Atlantic had won summary judgment dismissing the
underlying case against it. For this reason Peleus v Atlantic is not persuasive. (See exhibits 1 and
2 hereto.) Peleus v Atlantic was wrongly decided because it ignored well-established New York
law that reservations of rights are ineffective to annul the requirements of Ins. L. 3420(d). The
Company cannot reserve the right to violate Ins. §3420(d), and to delay a disclaimer, since it
does not have that right to begin with. This is well explained by my colleague, esteemed defense
counsel Dan Kohane, at his website: https://www.hurwitzfine.com/news/coverage-pointersvolume-xx-no-11-se
Further, we are working to obtain a further declaration of Steven R. Payne, counsel for
Mr. Salazar, who will attest from his own personal knowledge as a witness to Mr. Salazar’s
depositions and all litigation in the underlying that the scaffolding from which Mr. Salazar fell

Case 1:20-cv-02882-RA-GWG Document 136 Filed 05/06/22 Page 2 of 2
138

Honorable Ronnie Abrams, USDJ
Re: JMG v Arch
May 6, 2022
Page 2
was not being used for installation of EIFS, rather, it was being dismantled, as stated at pages 8586 of the deposition of Mr. Salazar in the underlying matter.
Finally, we intend to present the declaration of our client showing that the existence of a
contract remains an issue in dispute in the underlying matter.
We would appreciate until midnight tonight to submit the papers.
We thank the Court for its indulgence and attention to this matter.
Respectfully,

James M. Haddad
cc:

Cliff I. Bass
Frank Valverde

court17.docx

Application granted. Plaintiff shall file its
opposition today.
Defendants' application to file a short reply
(Dkt. 137) is also granted. Any such reply
shall be filed by May 13, 2022.
SO ORDERED.
_____________________
Hon. Ronnie Abrams
05/06/22