Defendants. CHEN KASHER, an attorney duly licensed to practice law before the

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1 FILED: NEW YORK COUNTY CLERK 04/21/ :21 PM INDEX NO /2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/21/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK }{ FLINTLOCK CONSTRUCTION SERVICES, LLC lnde:x No /2016 Plaintiff, -against- COLONY INSURANCE COMPANY, SCOTTSDALE INSURANCE COMPANY, HERITAGE INSURANCE COMPANY, ENDURANCE AMERICAN INSURANCE COMPANY, EVEREST NATIONAL INSURANCE COMPANY, NATIONAL CONTRACTORS INSURANCE COMPANY, AMERICAN STATES INSURANCE COMPANY AND UTICA MUTUAL INSURANCE COMPANY, AFFIRMATION OF CHEN KASHER Defendants }{ CHEN KASHER, an attorney duly licensed to practice law before the courts of the State of New York, affirms, pursuant to the penalties of perjury, as follows: 1. I am associated with the law firm of Jaffe and Asher LLP, attorneys for defendant AMERICAN STATES INSURANCE COMPANY ("American States") in the above-captioned action; as such, I am fully familiar with the facts and circumstances underlying this action. 2. I submit this affirmation of good faith in support of American States' motion for an Order, pursuant to C.P.L.R. 3124, compelling plaintiff FLINTLOCK CONSTRUCTION SERVICES, LLC to produce each and every document requested in American States' Notice to Produce, dated January 14, 2016; and granting such other and further relief as this Court deems just and proper. 1 of 5

2 3. This Affirmation in Support of the instant Motion to Compel is made in compliance with 22 N.Y.C.R.R (a). 4. American States is a defendant in this action. Flintlock alleges that it is an additional insured under an insurance policy American States purportedly issued to former co-defendant (prior to the severance of this action) ]&R GLASSWORKS, INC. ("J&R"). The Discovery Requests 5. On January 14, 2016, American States served its Notice to Produce upon Flintlock. A copy of the Notice to Produce, with Affidavit of Service attached, is annexed hereto as Exhibit "A". 6. To date, despite numerous demands, Flintlock has not served any response or objections to the Notice to Produce. Flintlock has not produced documents to American States. Good Faith Effort to Resolve This Dispute 7. On or about March 1, 2016, I called Anthony DeCapua, Esq., counsel for Flintlock, in an effort to resolve the above-referenced discovery issues. I could not reach him and left a voic , advising him that we had still not received any response to the Notice to Produce, despite its due date of February 17, A copy of this is annexed hereto as Exhibit "B". 8. On March 3, 2016, after Anthony DeCapua failed to return my call, I followed up with an asking him to "please touch base... as [his] discovery 2 2 of 5

3 responses have been outstanding now for more than two weeks." A copy of this is annexed hereto as Exhibit "C". 9. On March 3, 2016, Anthony DeCapua finally responded, "I just finished mediation of a 50 million dollar federal action. Do not be concerned, I will get to your discovery demands in due course." A copy of this is annexed hereto as Exhibit "D". 10. On March 15, 2016, I ed Anthony DeCapua again, advising him two more weeks had elapsed without so much as the courtesy of a follow up or a timeline for receipt of the discovery. A copy of this is annexed hereto as Exhibit "E". 11. On April 1, 2016, I called Anthony DeCapua again and left him a voic as to the overdue discovery. A copy of the subsequent to that phone call is annexed hereto as Exhibit "F". 12. On April 1, 2016, Anthony DeCapua responded, "Please send copies of your demands in word format for ease of response. I will agree to do same for our discovery demands to your client." On April 5, 2016, I re-served him the Notice to Produce in word format. A copy of this is annexed hereto as Exhibit "G". 13. On April 13, 2016, I left another voic for Anthony DeCapua because we had still not received any responses. A copy of the subsequent to that phone call is annexed hereto as Exhibit "H". 3 3 of 5

4 14. On April 13, 2016, Anthony DeCapua responded, "They are being prepared. This is not the only case I have. 11 A copy of this is annexed hereto as Exhibit "I". 15. DeCapua has responded to my s and phone calls with only excuses, and the discovery is now months overdue. To date, Flintlock has not produced a single document in response to the Notice to Produce. 16. To date, despite all of the good faith efforts to obtain all of the documents and responses requested in the Notice to Produce, Flintlock failed to produce such documents or provide any responses. 17. In light of the foregoing, it is apparent that Flintlock will not produce documents or responses without a court order compelling their production. Accordingly, an Order should be entered by this Court compelling Flintlock to produce each and every document requested in the Notice to Produce. Additionally, all objections by Flintlock shall be deemed waived. 18. No prior application for the relief requested herein has been made. 4 4 of 5

5 WHEREFORE, pursuant to the foregoing, it is respectfully requested that this Court grant American States's motion to compel compliance with the Notice to Produce. Dated: New York, New York April 21, 2016 CHEN KASHER, ESQ. 5 5 of 5