Stoncor Group, Inc. v. Peerless Insurance Company
Plaintiff: Stoncor Group, Inc.
Defendant: Peerless Insurance Company
Case Number: 1:2016cv04574
Filed: June 16, 2016
Court: US District Court for the Southern District of New York
Office: Foley Square Office
County: New York
Presiding Judge: Lewis A. Kaplan
Nature of Suit: Insurance
Cause of Action: 28 U.S.C. ยง 1332
Jury Demanded By: Plaintiff
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Date Filed Document Text
December 9, 2022 Opinion or Order Filing 215 MEMORANDUM AND ORDER denying 210 Letter Motion for Extension of Time to File; denying 213 Letter Motion for Oral Argument. Defendant's letter motions for an extension of time to file a notice of appeal (Dkt 210) and for oral argument (Dkt 213) are denied. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 12/9/2022) (jca)
October 3, 2022 Opinion or Order Filing 209 ORDER re: 198 Proposed Consent Order filed by First Continental Insurance Co. (Signed by Judge Lewis A. Kaplan on 9/7/2022) (Mohan, Andrew)
August 29, 2022 Opinion or Order Filing 197 ORDER: A telephone conference to discuss the status of this matter shall take place on August 31, 2022, at 11:00 a.m. At the above date and time, the parties shall dial (888) 557-8511 and use access code: 6642374. (The public may also dial in but wil l be permitted only to listen.) The Court will record the proceeding for purposes of transcription in the event a transcript is ordered. However, any other recording or dissemination of the proceeding in any form is forbidden. When addressing the Cou rt, counsel must not use a speakerphone. Each attorney or unrepresented party is directed to ensure that all other attorneys or unrepresented parties on the case are aware of the conference date and time. In addition, any requests for an adjournment must be made in compliance with Judge Gorenstein's rules (available https://nysd.uscourts.gov/hon-gabriel-w-gorenstein). SO ORDERED., ( Telephone Conference set for 8/31/2022 at 11:00 AM before Magistrate Judge Gabriel W. Gorenstein.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 8/29/2022) (ama)
August 26, 2022 Opinion or Order Filing 196 MEMORANDUM AND OPINION. The Court finds that Peerless is liable to First Continental for the legal fees, expenses and costs of defending Stoncor in Arias. As the damages portion of this action was severed from the trial as to liability, the ca se shall be referred back to the Magistrate Judge for a report and recommendation as to the proper damages amount. The Court has considered all of the deposition testimony and other evidence the admissibility of which was placed in issue by the p arties at the trial. The foregoing are the Court's findings of fact and conclusions of law. To the extent they may be inconsistent with any of the disputed evidence, they reflect the fact that the Court found that evidence either immaterial or unpersuasive. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 8/26/22) (yv)
March 16, 2022 Opinion or Order Filing 175 ORDER denying 168 Motion for Summary Judgment. Defendant's renewed motion for summary judgment (Dkt 168) is denied. The case is set for trial on May 17, 2022 at 9:30 a.m. in Courtroom 21B. Plaintiff's witness statements, designated d eposition excerpts, and premarked exhibits shall be submitted to chambers no later than April 15, 2022. Defendant's similar materials shall be submitted to chambers no later than April 29, 2022. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 3/16/22) (yv)
February 25, 2022 Opinion or Order Filing 163 ORDER. A telephone conference regarding Docket ## 160, 161, and 162 shall take place on Monday, February 28, 2022 at 4:00 p.m. In addition to addressing any issue raised in the letters, the parties should be prepared to address the question of whet her either plaintiff is a third-party beneficiary of the insurance contract between Surfacesys and Peerless Insurance Company. At the above date and time, the parties shall dial (888) 557-8511 and use access code: 6642374. (The public may also dial in but will be permitted only to listen.) The Court will record the proceeding for purposes of transcription in the event a transcript is ordered. However, any other recording or dissemination of the proceeding in any form is forbidden. When addressing the Court, counsel must not use a speakerphone. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/25/2022) (Gorenstein, Gabriel)
December 2, 2021 Opinion or Order Filing 151 OPINION AND ORDER re: 137 MOTION in Limine . filed by Peerless Insurance Company, 139 MOTION in Limine To Extrinsic Evidence. filed by First Continental Insurance Co., Stoncor Group, Inc. For the reasons stated above, Peerless's motion in limine (Docket # 137) and plaintiffs' motion in limine (Docket # 139) are each denied. (Signed by Magistrate Judge Gabriel W. Gorenstein on 12/2/2021) (rro)
July 26, 2021 Opinion or Order Filing 136 ORDER: The provisions in Docket # 133 remain in effect except that the undersigned will decide any motions in limine. Any such motion by a party shall be filed in a single memorandum of law (with affidavits if necessary) encompassing all such motions by that party. A party shall file its motion papers by August 2, 2021. Any opposition shall be filed by August 9, 2021. Any reply shall be filed by August 12, 2021. (Signed by Magistrate Judge Gabriel W. Gorenstein on 7/26/2021) (rch)
June 23, 2021 Opinion or Order Filing 131 ORDER granting in part and denying in part 108 Motion to Dismiss; denying 108 MOTION to Dismiss, MOTION to Strike, filed by Peerless Insurance Company; granting in part and denying in part 111 Motion to Dismiss; denying 111 Motion to Strike docket entry and document 108 MOTION to Dismiss MOTION to Strike filed by Peerless Insurance Company, 111 AMENDED MOTION to Dismiss, MOTION to Strike, filed by Peerless Insurance Company. Defendant's motion, as amended, to dismiss the amended complaint (Dkts 108, 111) is granted to the extent that the first cause of action is dismissed and denied in all other respects, and plaintiffs' request for leave to amend is denied, all substantially for the reasons set forth in the Report and Recommendation of Magistrate Judge Gabriel W. Gorenstein. Defendant's objections are overruled. While defendant claims that plaintiff Stoncor Group's remaining cause of action for breach of contract al so should be dismissed because it has conceded that it has not suffered any damages, it cites no authority for that proposition. The amended complaint alleges that both plaintiffs sustained damages. Accordingly, there is no basis before the Court on which to sustain defendant's objection. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 6/23/2021) (va)
February 16, 2021 Opinion or Order Filing 120 ORDER: In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, a United States Magistrate Judge is available to rule on dispositive motions in this case. If the parties consent to the Magistrate Judge ruling on a particu lar motion, no objection to the ruling would be permitted under Fed. R. Civ. P. 72 (b)(2). Instead, the ruling would be treated as any other ruling in the case and would be reviewable to the extent the ruling would have been reviewable had it been ma de by a District Judge. Exercise of jurisdiction by a Magistrate Judge to make a ruling on a dispositive motion is permitted only if all parties voluntarily consent. To determine whether the parties wish to voluntarily consent to the Magistrate Judge 's disposition of the motion to dismiss and/or strike (Docket ## 108, 111), defense counsel is directed to send to counsel for plaintiff on or before March 2, 2021, a copy of the attached consent form bearing either (1) a signature indicating co nsent to the Magistrate Judge ruling on the motion or motions identified on the form, or (2 a notation that the defendant does not consent. On or before March 9, 2021, plaintiff's counsel is directed to file a letter either (1) stating that all parties have signed the form and attaching that form or (2) stating that all parties have not consented. If any party has not consented, the letter shall not inform the clerk which of the parties have not consented but shall merely state that there has not been consent by all parties. This Order is not intended to interfere with the parties' right to have a trial and/or any other dispositive proceedings before a United States District Judge. The parties are free to withhold their consent without adverse substantive consequences. If any party withholds consent, the identity of the parties consenting or withholding consent shall not be communicated to any Magistrate Judge or District Judge to whom the case has been assigned. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/16/2021) (ama)
February 11, 2021 Opinion or Order Filing 119 ORDER: terminating 117 Letter Motion for Discovery. With regard to defendant Peerless Insurance Companys request to depose Michael B. Sena, counsel for plaintiff Stoncor Group, Inc. (Docket ## 117, 118), the Court asks that the parties take steps now in an effort to possibly obviate the need for such a deposition. First, defendant's counsel and Mr. Sena should have a telephonic discussion about the factual issues that defendant's counsel seeks to get answers to. The Court is hopeful that, as part of that discussion, the parties will be able to agree on the wording of focused interrogatories to Mr. Sena that might obviate the need for a deposition. The defendant should serve those interrogatories on Mr. Sena and, assuming they a re not objectionable, he should answer them under oath promptly. If defendant still believes a deposition is required after this process, it may make a new application for a deposition. Should that occur, Stoncor may renew its argument that the deposition should take place after the liability phase of this case. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/11/2021) (ama)
February 4, 2021 Opinion or Order Filing 116 ORDER: denying without prejudice 112 Letter Motion for Conference ; denying without prejudice 112 Letter Motion for Discovery. As the Second Circuit held in McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1314 (2d Cir. 1993),while "an action to recover attorneys' fees pursuant to a contract presents traditional common law contract issues which should be submitted to a jury,... the subsequent determination of the amount of attorneys' fees owed presents equitable issues of accou nting which do not engage a Seventh Amendment right to a jury trial" (emphasis added). The purpose of the "witness-advocate" disqualification rule is largely geared to interference with the jury function. See Ramey v. Dist. 141, Intern . Ass'n of Machinists and Aerospace Workers, 378 F.3d 269, 283 (2d Cir. 2004) (referring to concern that testimony by the advocate will interfere with "the jury's ability to find facts") (citation and quotation marks omitted). Bec ause there will be no jury trial on the issue of attorney's fees, there is no real danger of counsel's continuing representation tainting the trial. See U2 Home Ent., Inc. v. Tan, 2001 WL 823701, at *1(S.D.N.Y. July 23, 2001) ("In view of the fact that this appears to be a non-jury case, the likelihood of trial taint by virtue of any violation of the witness-advocate rule seems small."). Indeed, given the nature of attorney fee determinations, the "accounting" requi red by McGuire is unlikely to involve a trial at all. The application to disqualify counsel is denied. As for any request to depose counsel, this application is denied without prejudice to a newapplication, if necessary, compliant with paragraph 2.A of the Court's Individual practices. As part of the conferral process, the parties should certainly attempt to see if the information needed can be provided in some form other than deposition testimony. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/04/2021) (ama)
December 15, 2020 Opinion or Order Filing 107 ORDER: hone conference to discuss the status of this matter shall take place on Monday, December 21, 2020, at 2:30 p.m. At the above date and time, the parties shall dial (888) 557-8511 and use access code: 6642374. (The public may also dial in but will be permitted only to listen.) The Court will record the proceeding for purposes of transcription in the event a transcript is ordered. However, any other recording or dissemination of the proceeding in any form is forbidden. When addre ssing the Court, counsel must not use a speakerphone. Each attorney or unrepresented party is directed to ensure that all other attorneys or unrepresented parties on the case are aware of the oral argument date and time. In addition, any requests f or an adjournment must be made in compliance with Judge Gorenstein's rules (available https://nysd.uscourts.gov/hon-gabriel- w-gorenstein). So Ordered. (Telephone Conference set for 12/21/2020 at 02:30 PM before Magistrate Judge Gabriel W. Gorenstein.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 12/15/2020) (js)
August 15, 2018 Opinion or Order Filing 101 OPINION AND ORDER re: 76 MOTION to Stay filed by Peerless Insurance Company. For the reasons set forth above, Peerless's motion to stay (Docket# 76) is granted. The parties shall report to the Court when the state court has adjudicated any of the issues relevant to this case so that the Court may determine whether the stay should continue. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 8/15/2018) (anc)
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Plaintiff: Stoncor Group, Inc.
Represented By: Michael Brian Sena
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Defendant: Peerless Insurance Company
Represented By: Marshall Todd Potashner
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