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1
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STEIN AFF SUP MTD
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EXTRACTED KEY WORDS
COMPLAINT AGREEMENT LAW THEFTS SETTLEMENT INSURANCE DISMISS CONTRACT ACCOMPANYING RIGHTS PURSUANT CPLR FAILS MEMORANDUM FERRARESE AFFIDAVIT SUPPORT MOTION STEIN ARLD BREACH HERETO EXHIBIT PAID ALLEGES LOSSES SHIFT RISK SUBROGEE |
SUPl?EVE COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - _ I - - - - - - - - - - - - - - - - - -
X I
FEDERAL INSURANCE COEIPAKY,
: Index No.
:
- agairlst
: AFFIDAVIT IN SUPPORT
OF MOTION TO DISMISS
ARTHUR ANDERSEN & CO.,
:
:
I
----------------------------------------x
I
SIDNEY H. STEIN,
sworrl, states:
1. I am a member
of Stein, Zauderer,
Ellerlhorrl, Frischer
torneys for defendant Arthur
Andersen & Co. ("Andersen")
action. I submit this
affidavit in support
motion to dismiss the
complaint pursuant
because it fails to
state a cause of action,
the secorld cause of
action pursuant to
it fails to give
adequate notice of
elements of plaintiff's cause
of action for breach of contract,
2. Attached
s Exhibit A is a copy of
plaintiff's complaint.
SNIPPETS:
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2
.
SETTLEMENT AND RELEASE
|
EXTRACTED KEY WORDS
HERETO PARTIES RECEIVABLES ANDERSTN PARTY REQUEST EVIDENCE OFFICERS DIRECTORS ACT RELATING HEREOF ACKNOWLEDGMENTS CONNECTION COURT AUTHORITY SETTLEMENT BENTON RND ENGAGEMENT ACCOUNTING REPRESENTING THT VITH PRTSTNTTD HAY IHE ANDTRSTN AUDIT |
,+b -I
.
i' . I . . sg~~~ttam ~c~ttntn'l AllD RettAst
e
(the "Agreement ") i8
This Settlement agreement
entered into tffective 88 of nay 2, 1983,
Holdings, fnc. e 8 HOW vort corporation
rnd Arthur
-Andtrsen b CO. * an Illinolt
`AndertcDt@),
Wheress, Andersen
B&B from time to time
to provide accounting l
professional service1
and
Whereas, Andersen l
working together to
review the circumstenccs
by B&B in its balance
sheets as at December 31,
tain accquats
receivable in an amount
$3.2 mlllion and to
determine the effect
her financial statemente
for such years rnd thereafte,r
the circumstances of
their Inclusion and the
referred to as the
"Receivables"); and
Vhereae, the parties
mutual interest
to resolve and settle
and all matters betveen
themselves relating to the
eafter set forth;
Now therefore, kn
premises, the parties
hereto agree as follove:
1. Andereen shall
, from time to tire
SNIPPETS:
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3
.
SETTLEMENT AGRREMENT AND
|
EXTRACTED KEY WORDS
PARTIES HERETO PARTY EVIDENCE COMPEL AUTHORITY OTHERVISE ADMISSION TERM6 COURT AGENCY AGENTS PARTNERS DISCLOSURE SUBSIDIARIES OFFICERS DIRECTORS MEMBERS HEIRS SUCCESSORS HEREOF REPRESENTATIVES PRIOR CONSENT PROMPT NOTICE ACCORDANCE LAW6 YORK WITNESS WHEREOF |
SETTLEMENT AGREEMENT AND RELEASE
This settlement agreement and release
is
entete,d into effective as of Hay 2, 1983, between
6 Baulee
Holdings, Inc., a Hew York corporation
Andersen 6 Co., an Illinois partnership
WITNESSETH
Whereas, Andersen has been engaged
to time
to provide accounting and auditing
services ;
and
Whereas, Andersen and B&B have been working
to
review 'the circumstances of the-inclusion
balance
sheets as at December 31, 1980, 1981 and
accounts
receivable in an amount of approximately
to
determine the effect thereof upon B&B's other
statements
for such years and thereafter (such
of
their inclusion and the effect thereof
as the
"Receivables"); and
Whereas, the parties hereto deem it
interest
to resolve and settle vithout dispute
between
themselves relating to the Receivables,
rth;
Now therefore, in consideration
parties
hereto agree as follows:
1. Andersen shall make available
to time
at B&B's request, prdfessional services
representing not more than $900,000
at
Andersen's regular rates at the time such
SNIPPETS:
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4
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REP AFF SUP MTSJ
|
EXTRACTED KEY WORDS
YORK SUPREME COURT COUNTY COMPLAINT SUMMARY JUDGMENT BOWLES MOTION SWORN |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
FEDERAL INSURANCE COMPANY,
/
Plaintiff,
-against-
ARTHUR ANDERSEN & CO.,
Defendant.
----------------------------------------x
STATE OF NEW YORK ) ss. :
COUNTY OF NEW YORX ;
SIDNEY H. STEIN, being sworn,
1. I submit this reply affidavit
Andersen's motion for summary judgment
perspective the procedural history of this
address several misstatements of fact and
the affidavit of Arthur Iambert submitted
Federal.
2. Federal seeks to portray
an unnecessary imposition on this Court
which have previously been addressed.
history of this action clearly demonstrates
of subrogation raised by Andersen in the
only motion brought in response to the amended
have never been addressed directly by this
of Federal's right to proceed as an assiqnee
reached by this Court in Andersen's prior motion,
issue of Federal's right to proceed as a subrogee
SNIPPETS:
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5
.
REP AFF SUP DEF MOT FOR P
|
EXTRACTED KEY WORDS
SWORN COUNTY DISCOVERY SUPREME COURT ROB CRICHTON MISREPRESENTATIONS FASHION AUTHORITIES INSPECTION ION NOTA |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------x
FEDERAL INSURANCE COMPANY, : Index
Plaintiff, : Hon.
-against- : REPLY
ARTHUR ANDERSEN & CO., :
FOR
Defendant. : ORDER
STATE OF NEW YORK `L -
) -4 3
: ss. :
COUNTY OF NEW YORK )
ROB J. CRICHTON, being duly
- 1. In its papers submitted
motion by Arthur Andersen & Co. (llAndersenl')
order, Federal Insurance Company (llFederalll)
procedural history of this action as well as the
law. I submit this reply affidavit to respond to
misrepresentations.
Federal's Failure to Disclose the
Stipulation Preserving Andersen's
Right to Move for a Protective Order
2. Federal argues that "Andersen
judgment "several weeks after the time to move for a
protective order pursuant to CPLR 3122 had expired."
(Lambert Aff. 711). That is patently false;
explicitly preserved its right to move for a protective
by stipulation with Federal. (A copy of that
annexed hereto as Exhibit IIAII.) I personally
Federal's counsel of the existence of this
n
the event that counsel had overlooked it)
March 29, 1990, in which I wrote:
Our respective firms entered
ulation dated December 2, 1986
Andersen's time to move for a protective
order until December 8, 1986 -- the very
day on which Andersen moved for
SNIPPETS:
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6
.
RELEASE ASSIGNMENT AND SU
|
EXTRACTED KEY WORDS
BENFON BENTON ARTHUR ANDERSON THEREOF |
RELEASE, ASSZGtiKENT AND SUBROGATlON AGREEMENT
,KNOW ALL MEN BY THESE PRESENT'S, that BENTON & BONES,
(hereinafter called the"Benton I Bowles"), and its
affiliates, for and in consideration of the sum of
($1,000,000.00~ DOLLARS and other good and valuable
receipt of which is hereby acknowledged, does hereby
discharge FEDERAL INSURANCE COMPANY (hereinafter
any and all claims and causes of action on Policy
respect to any and all loss or losses caused by
said individual was acting alone or in collusion
understood that Benton d Bowles and Federal reserve
recoveries with respect-to the..afore-described
Ferrarese, and other persons, firms or corporations
causing the aforesaid loss or losses, and that any
&hall be distributed pursuant to the terms and conditions
except that Benton & Bowles does hereby subrogate,
set unto Federal all the rights, claims, interest
ir has against Arthur Anderson b Co. up to the amount
Benfon 6 Bowles.
It is further understood that any of the
that Federal has against Arthur Anderson & Co. have
I !i t or impaired in any way by any agreements entered into between Benton
;I 'i Bowles and Arthur Anderson d Co.
I I
Exhibit B 1 L -. _.
A
- ,,1
Benton L Bowles hereby warrants
sne
preccrvr, r~l 1 oriLina1 cnrrcspondchnce,
pertaining to said loss or losses, for a
SNIPPETS:
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7
.
REIS AFFIDAVIT
|
EXTRACTED KEY WORDS
COUNTY SWORN SUPREME COURT PHILIP REXSS DULY SWORN DEPOSES MEMBER BAR SUMMARY JUDGMENT |
_-
-, 1 <
SUPREME COURT OF THE S#'L'ATE OF NEW YORK
COUNTY OF NEW YORK
FEDERAL INSURANCE COMP??Y, Index No.
Plaintiff, Hon. Martin
-against- AFFIDAVIT
ARTHUR ANDERSEN & CO.,
Defendant.
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK f
PHILIP S. REXSS, being duly sworn, deposes and says:
1. I am a member of the Bar of the State of New York
and a partner at the law firm of Davis & Gilbert.
affidavit based upon ml knowledge of the underlying
2. Davis & Gilbert was general counsel to
Bowles, Inc. (llB&B1l) !.:I 1983 and represented B&B in
with the Settlement AgP:eement and Release ("Settlement
AgreementI') it entered into with Arthur Andersen & Co.
(llAndersenll) effective as of May 2, 1983. (A copy of the
Settlement Agreement i '; annexed hereto as Exhibit
personally represented B&B during the negotiations
representatives of Andersen surrounding the drafting
Settlement Agreement.
3. Counsel for Federal Insurance Company
advises me that during the oral argument held on February
1987, on Andersenls motion for summary judgment, the
an inquiry as to which insurance carrier was intended
1
I. >
protected by paragraph 5 of the Settlement Agreement.
state unequivocally that paragraph 5 of the Settlement
was drafted with the express purpose of preserving
Federal. In fact, Federal's policy, Crime Policy,
96-A, was the only insurance policy that B&B possessed that
insured it for the thefts of its former employee, Albert
SNIPPETS:
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8
.
PRE-ARGUMENT STATEMENT
|
EXTRACTED KEY WORDS
ARTHUR YORK LAW SUPPORT DISMISS COMPLAINT JUDGEMENT ESQ MARTIN EVANS SUPREME COURT COUNTY CLERK MEMORANDUM SIDNEY STEIN HON EXHIBITS OPPOSITION INSURANCE APPELLANT PLAINTIFF LAMBERT ENTRY AFFIDAVIT RICHARD CONNERS JAMES PETERSON |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
FEDERFiL INSURANCE- COMPANY,
Plaintiff,
-against-
ARTHUR ANDERSEN & CO.,
Defendant.
------------------------------l-x
1. The title of the action is
above action.
2. The full name of the original
action are:
(a) Federal Insurance
appellant:
(b) Arthur Andersen & Co.,
There has been no change in the original
commencement of this action.
3. Counsel for the plaintiff-appellant,
Insurance Company:
Lambert & Weiss
61 Broadway, Suite 2020
New York, New York 10006
(212) 344-3100
Arthur N. Lambert, Esq., Carol A. Pisano,
Lustig, Esq. of Counsel.: i
1
4. Counsel for the defendant-respondent,,
SNIPPETS:
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9
.
PLF MEM OPP MTSJ
|
EXTRACTED KEY WORDS
COURT SUBROGATION COUNTY INSURER NEGLIGENCE EMPLOYERS SUPREME COURT LAW PAID LOSS SURETY EMPHASIS INSURANCE FAILING DEFALCATIONS BOOKS TOUCHE AGREEMENT LIABILITY ENTIRETY COUNSEL ARTHUR LAMBERT ROBIN MITCHELL LUSTIG CARTESLO DULY SWORN DEPOSES |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------x
FEDERAL INSURANCE COMPANY, Index No.
Plaintiff, Assigned
Hon. Martin
-against-
ARTHUR ANDERSEN & CO.,
Defendant.
---------------------------------------x
MEMORANDUM OF LAW OF PLAINTIFF FEDERAL INSURANCE COMPANY
IN OPPOSITION TO DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
Preliminary Statement
This memorandum of law is submitted by
Federal Insurance Company (hereinafter referred to as
in opposition to the motion of defendant, Arthur
(hereinafter referred to as "AndersenVl), for an order
CPLR Section 3212 granting Andersen summary judgment
Federal's amended complaint.
STATEMENT OF FACTS
The facts of this matter are more fully set forth
the affidavit of Arthur N. Lambert, sworn to on the 3rd day of
February, 1987, and the affidavit of Philip Reiss, sworn to
the 30th day of January, 1987, both submitted in opposition
the instant motion, Accordingly, rather than burden this
with an additional recitation of the facts, the Court is
respectfully referred to said affidavits for same.
POINT I
THE LAW IN THIS STATE DOES NOT RECOGNIZE ANY
RESTRICTIONS ON THE RIGHT OF AN INSURER WHICH
HAS PAID A LOSS TO RECOVER BY WAY OF
SUBROGATION FROM THIRD PARTIES WHOSE
NEGLIGENCE AIDED, PERMITTED AND/OR CONTRIBUTED
TO THE LOSS IN QUESTION
The law in New York is well settled that
has made payments to its insured is entitled to be
the rights of its insured against third parties
compelled the insurer to make payment. Ocean Accident
Guarantee Corporation v. Hooker Electra Chem-Co.,
147 N.E. 351 (1925); Travelers' Ins. Co. v. Brass Goods
SNIPPETS:
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10
.
PLF MEM OPP MTD
|
EXTRACTED KEY WORDS
YORK LAW INSURER PAID LOSS PREMIUMS DEMAND BOWLESL PARTY TRANSMENT DEMNITV DICTA BENTON BOWLES PAID EMPHASIS COVERAGE PLAINTIFF BOWLESL BALANCE SHEETS MERIT VETRI JOHNSON SUP PROPER COUNSEL ARTHUR LAMBERT CAROL PISANO ROBIN |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----"----"------'---------------------~
FEDERAL INSURANCE COMPANY,
Plaintiff,
-against-
ARTHUR ANDERSEN t CO.,
Defendant.
-----"----"----"-'---"'--------------------~
MEMORANDUM OF LAW OF FEDERAL INSURANCE COMPANY
IN OPPOSITION TO THE MOTION TO DISMISS THE COMPLAINT
PRELIMINARY STATEMENT
This Memorandum of Law is submitted by plaintiff,
Insurance Company, (hereinafter "Federal), in opposition
motion of defendant, Arthur Andersen t Co.,
lVAndersen'l) pursuant to CPLR Section 3211 (a)(7)
dismissing plaintiff's complaint on the ground that the complaint
allegedly fails to state a claim upon which
granted. In addition, defendant moves pursuant to
3013 for an order dismissing plaintiff's second cause of
for breach of contract, on the ground that plaintiff
fails to sufficiently particularize the contract
This Memorandum of Law is also submitted in opposition
portion of defendant's motion which seeks dismissal
cause of action.
2
STATEMENT OF FACTS
As is set forth in the accompanying Affidavit
Connors, sworn to the 6th day of May, 1986, the facts
matter, which for purposes of this motion must be assumed to be
true, are as follows:
SNIPPETS:
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11
.
PLF 1ST NOT FOR DISCOVERY
|
EXTRACTED KEY WORDS
HROUGH SUPREME COURT OUNTY BOOKS EAM AUDITS PROCTOR GAMBLE ACCOUNT PERSONNEL EVALUATIONS EMPLO |
! %.
I
C SUPREME COURT OF THE STATE OF NEW YORK .m
; :OUNTY OF NEW YORK
.-------""'-"""-------------------x
PEDERAL INSURANCE COMPANY,
lE Plaintiff,
-against-
A lRTHUR ANDERSEN & CO.,
Defendant.
; - '-"'-"""""--"""--------------------x
Is IRS:
,
i i
! I PLEASE TAKE NOTICE that
1 I
j I
`i3 120 of the CPLR, defendant is hereby
#permit plaintiff and its attorneys to
11
photograph the following documents in
I( zontrol and/or custody.
1. The engagement letters
3enton and Bowles, Inc., ("B&B") for
2. Guidelines prepared and/or
regarding the procedures to be followed
3&B, and/or instructions defendant
regarding the audits of B&B for the years 1975 through
3. Guidelines prepared and/or
regarding the procedures to be followed
SNIPPETS:
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12
.
PETERSON AFF SUP MTSJ
|
EXTRACTED KEY WORDS
SUPREME COURT COUNTY RECEIVABLES GEORGIA IVLY COMMISSION EXPIRES FAB |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
FEDERAL INSURANCE COMPANY, :
ns
Plaintiff, I .
-against- :
ARTHUR ANDERSEN & CO., : FOR
Defendant. . I
--------------------~-------------------x
STATE OF GEORGIA 1
: ss.:
COUNTY OF FULTON )
JAMES R. PETERSON, being sworn states:
1. I am a principal-of defendant
-.
& Co. ("Andersen"), a member of Andersen's
department and a member of the bars of New York and Illinois.
I have personal knowledge of the relevant
this affidavit in support of Andersen's motion
judgment in its favor pursuant to CPLR § 3212.
2. In its amended complaint,
Insurance Company ("Federal") alleges that
Benton & Bowles retained Andersen as its accountant
cp1t., I[ 5), that a Benton & Bowles officer
Ferrarese stole more than $1 million from Benton
(Amd. Cplt., !T!l 7, 8, 111, that Federal paid
SNIPPETS:
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13
.
PETERSON AFF SUP MTSJ
|
EXTRACTED KEY WORDS
BOWLES ASSIGNMENT RECEIVABLES COMPLAINT ACCOUNTS EXHIBIT INSURANCE AFFIDAVIT MOTION RIGHTS REASONS YORK SUMMARY JUDGMENT DEFENDANT PURSUANT CPLT FERRARESE INSURANCE POLICY RELEASING COUNTY INSURANCE COMPANY PLAINTIFF SUPPORT ILLINOIS SWORN MEMBER FACTS ALLEGES STOLE |
, c
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
0 -----LI-------Llff---------------------
X
--
FEDERAL INSURANCE COMPANY,
. . Index No. 4691/86
:
. . AFFIDAVIT IN SUPPORT
OF MOTION FOR
. . SUMMARY JUDGMENT
ARTHUR ANDERSEN & CO.,
. .
:
X
- - - - l - - f - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
1 STATE OF ILLINOIS
COUNTY OF COOK
1.
dant Arthur Andersen & Co.
(l'Andersenn),
in-house legal department and a
member of the bars of New York and Illinois.
I have personal
knowledge
and I submit this affidavit in
support of
dgment in its favor
pursuant
2.
tiff Federal Insurance Company
SNIPPETS:
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14
.
OPINION (APPEALS)
|
EXTRACTED KEY WORDS
SUPRA APP TRUST NY2D APPEALS QROUNDS CAL RPT DEPOSIT QUEENS MCGRATH CARNEQIE TRUST JUR2D PAYMENT OBLIGATION APP DIV WESTERN SUR LOY SAKE COUNTY TRUST SUPRD WE-SEE REASON PROTHERE ACCORDING LAW CERTIFY PRECEDING ICE ALBANY |
Court of Zlppenls
1 No. 18
Federal Insurance Company,
Appellant,
V.
Arthur Andersen & Co.,
Respondent. This opinion is
before publication
Arthur N. Lambert, Susan E. Jaffee, NY
appellant.
Sidney B. Stein-i---Robert--=,J. -Crichton;
respondent; ..-. .-
HANCOCK, JR., J.
Plaintiff, a.fidelity insurer, paid its insured
caused by the defalcations of an employee.
defendant, its insured's accountant and auditor,
it had paid, alleging that defendant was negligent
discover the defalcations. This appeal is f-rom an order
affirming summary judgment against plaintiff and
action.
-l-
-2-
l
b L
The decisive question is whether plaintiff's
t' I
recover as equitable subrogee to the extent of
SNIPPETS:
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16
.
MEM SUP MTD
|
EXTRACTED KEY WORDS
COMPLAINT SUBROGATION MANAGEMENT BOND COUNTY CONTRACT WRONGDOING DOCTRINE SUPERIOR EQUITIES BARS SUBROGATION ASSIGNMENT BASIS COST INSURER PIERCE FENNER SMITH OKLA NATIONAL BANK WIS NEGLIGENCE PAYING SUING COUNSEL SIDNEY STEIN BERTRAND SELLIER |
l SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
FEDERAL INSURANCE COMPANY,
: Index No.
:
- against
. .
ARTHUR ANDERSEN & CO.,
l '
:
:
I - f - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _
X
9 MEMORANDUM OF LAW OF ARTHUR ANDERSEN & CO.
IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT
+ Defendant
Co. ("Andersen")
submits this memorandum of law in support
of its motion to
. dismiss the complaint
L.R. § 3211(a)(7)
-* + because the complaint
a cause of action, and
to dismiss the second cause of action
pursuant to C.P.L.R
93013 because it fails
notice of the
f material elements
of action for breach
I . of contract.
F*
The Complaint
Plaintiff
Company ("Federal") is
l an insurance company which claims
have paid Benton &
Bowles ("B&B") $1 million to reimburse B&B for losses
SNIPPETS:
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17
.
MEM OPP MOT STRIKE
|
EXTRACTED KEY WORDS
COUNTY YORE SUPREME COURT DELAY CPLR REQUESTS DOCUMENTS CONTRACT CLAIMS PROPER COUNSEL SUSAN JAFFEE |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------x
FEDERAL INSURANCE COMPANY,
Plaintiff,
- against -
ARTHUR ANDERSEN & Co.,
Defendant.
------------------------------------~~~---~~~~
A MEMORANDUM OF LAW IN OPPOSITION
DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S
FOR DISCOVERY AND INSPECTION
PRELIMINARY STATEMENT
This memorandum of law is submitted
Federal Insurance ("Federal") Company,
to
motion brought by defendant, Arthur Andersen
pursuant to CPLR Section 3103 and 3122 to strike
First Notice for Discovery and Inspection.
Y are set forth in the affidavit of Arthur
accompanying exhibits, submitted herewith.
.-
discussed herein, Andersen's motion is
objections raised to the documents requests
discovery notice lack merit. Accordingly,
compel Andersen to produce the documents
delay.
POINT I
ANDERSEN HAS WAIVED THE RIGHT TO OBJECT TO
PLAINTIFF'S FIRST NOTICE FOR DISCOVERY AND
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18
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MEM OPP DEF MTSJ
|
EXTRACTED KEY WORDS
COURT YORK ENTIRETY MOTION SUPREME COURT COUNTY MATTER LAW ASSERTING AWARD COUNSEL ARTHUR LAMBERT MITCHELL LUSTIG |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------x
FEDERAL INSURANCE COMPANY, Index No. 4691/86
Plaintiff, Assigned Justice:
Hon. Martin
-against-
ARTHUR ANDERSEN & CO.,
Defendant.
PRELIMINARY STATEMENT
This Memorandum of Law is submitted by plaintiff,
Federal Insurance Company, (llFederaltV), in opposition to the
motion of defendant, Arthur Andersen & Co. (Vndersen"),
order pursuant to CPLR Section 3212 granting Andersen summary
judgment dismissing Federal's complaint.
1
STATEMENT OF FACTS
c
5 For several years prior to 1975, and
each year thereafter to at least June, 1984,
Benton & Bowles, Inc. (fiUB&B1l) retained and/or
services of Andersen to act as its independent
accountants and auditors.
Subsequent to Andersen's engagement by
Ferrarese ("Ferrarese"), B&B's former client
fraudulently embezzled, misappropriated and
use and benefit a sum in excess of four million
rightfully belonging to B&B by preparing
purporting to be from B&B's customers, and
receiving payment of said fraudulent invoices.
As a result of Ferrarese's defalcations,
a claim to Federal. After a thorough
claim by Federal, it was determined that B&B had
as a result of employee dishonesty. Pursuant
insurance with Federal, B&B was indemnified
the limit of its policy, to wit: $l,OOO,OOO. In
SNIPPETS:
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19
.
DEF REP MEM SUP MTSJ
|
EXTRACTED KEY WORDS
COURT SUBROGATION SUPREME COURT COUNTY MEMORANDUM SUPPORT MOTION SUMMARY JUDGMENT DOCTRINE SUPERIOR EQUITIES BARS PROCEEDING RELIEF BASIS LOSS INSURER ASSIGNMENT REISS AFFIDAVIT INAPPOSITE COUNSEL SIDNEY STEIN ROB CRICHTON |
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------'--------------------------------x
FEDERAL INSURANCE COMPANY, : Index No. 4691/86
Plaintiff, : Hon. Martin
-against- :
ARTHUR ANDERSEN & CO., :
Defendant. :
REPLY MEMORANDUM OF ARTHUR ANDERSEN & CO.
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Preliminary Statement
Defendant Arthur Andersen & Co. submits
memorandum of law in support of its motion for summary
ment dismissing the complaint pursuant to C.P.L.R. §
Plaintiff Federal Insurance Company, still
uncertain whether it is suing as an assignee or as a
rogee, alleges in its recently amended complaint,
bringing this action as either an "assignee and/or
of its insured Benton & Bowles, Inc. ("B&B") on the
a "Release Assignment And Subrogated Agreement" (the
"AssignmentN) which it entered into with B&B on February
1985.
Federal claims to have paid B&B, pursuant
fidelity insurance contract, $1 million to reimburse
losses it allegedly incurred as a result of the
of funds from B&B by Albert Ferrarese, a former Vice
President of B&B. In this action, Federal seeks
from Andersen the amount which Federal apparently
B&B.
Nearly two years prior to the time of the
Assignment, however, B&B released Andersen from
claims arising from or related to the funds embezzled
B&B's employee, Ferrarese, Thus, B&B retained
it could assign to Federal on February 13, 1985.
In addition, Federal is barred by the doctrine
superior equities from bringing this action as a
B&B. Under the doctrine of superior equities,
held to be inequitable to grant subrogation to a
surety, such as Federal, as against a third
Andersen, absent a finding that the third party
participated in, or benefited from, the wrong against
surety's principal. Federal has asserted no such
Andersen has now moved for summary judgment
SNIPPETS:
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20
.
DECISION
|
EXTRACTED KEY WORDS
ION FERRARESE RIGHTS SURETY SUBROQATION CREDITOR PAID PRINCIPLES SUHROQA COURT EQUITY INSURANCE RECEIVABLES ANDERSON LOSS DEFENDANT SUBROGATION PLAINTIFF ICY AQAINST PAYMENT DISMISS PARTY POLICY RIQHTS ASSIGNMENT PAY DUTY DEBT |
C;UFF~:EtlE COL'F:T OF THZ STATE
C~3l.!rlTY OF NEW Y!lF:I:: I AS F's)- t 3
- ____ -_--_f-----_-_f__ ____ -_--
FEllERAL INSURANCE CUT:?4NY :
F' i 3 i I-I t I
- against -
ARTHUR ANDERSEN P,. CO, ,
Defendant
__--____-___l_____l___l____l_____l_
MARTIN EVANS, Je:
tleffndanr's rctoti, n
judgnml t dismis5inq the
cmip1ai1-lt is qranted*
Benton h l30wle5, IilCt
advertisinq corporation
had emp I oyed one A 1 herr
1952 unti 1 1983. Between
1975 and 1983, Ferrar: se
i ma t e \ 4' 64 ,000 ,000 f ram
EMI, and cancea I ed thc,>e
hrough rnanipul at ion of I
receivables on the hooks
&B,
Defendant, an account
been ret ai ncd by EMI for
several years before 1975,
its services to BbB
at least through June,
1 y , defendant had prepared
ba\ance sheets for the
and 1982 which included
some 63,200,00(`., of receivables
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21
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DEAR JUSTICE 3
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EXTRACTED KEY WORDS
YORK LAW INSURANCE PLAINTIFF SURETY INSURER CITY FIDELITY SUBROGATION BANK DEFENDANT SUPERIOR EQUITY DOCTRINE SUBROGATE COUNSEL DEPOSIT APPEALS SUPREME COURT THIRD-PARTY THIRD PARTIES SUPPORT MEMORANDUM SUMMARY JUDGMENT AGREEMENT NEGLIGENT NEGLIGENCE EXHIBIT JUSTICE ATTORNEYS |
_.. - ,+- ;
LAMBERT & WEISS
COUNSELORS AT LAW
THUR N. LAMBERT NEW
0
NASSAU COUNTY OFFICf
JNROE WEISS'
666 OLD COUNTRY ROAf
-.
CAROL A. PISANO
SUITE 306
GARDEN CITY. N. Y. 1 153
KENNETH L. ARON
ROBIN COHEN"
NEW JERSEY OFFICE
RICHARD ISGARD"
LAW 8UILDING.ROUTE 20.3 N( i
SUSAN E. JAFFEE
HAWTI-IORNE. NEW JERSEY 0 7
FELICIA LEBEWOHL
ALPHONSE T. CRESCENZ'
RHONDA S. LEONARD
RESIDENT COUNSEL
STACY M. LEOPOLD
I2011 423-0100
MITCHELL S. LUSTIG
,MEMBER I4 " L N.,. e*m
Honorable Martin Evans
Justice of the Supreme Court
of the State of New 'Pork
60 Centre Street
Room 508
New York, NY 10007
Re: Federal Insurance
Andes-sen f Company
Index PT:,. : 4691/86
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