From Casetext: Smarter Legal Research

Republic Western Insurance v. RCR Builders, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Jan 31, 2000
268 A.D.2d 574 (N.Y. App. Div. 2000)

Opinion

Submitted December 2, 1999

January 31, 2000

In an action to recover damages for breach of an indemnity agreement, the plaintiff appeals from an order of the Supreme Court, Queens County, (Dye, J.), dated October 2 1, 1998, which denied its motion for summary judgment as against the defendants RCR Builders, Inc., Vasilios Xanthakos, and Dimitrios Xanthakos.

Agovino Asselta, LLP, New Hyde Park, N.Y. (Joseph O. Asselta of counsel), for appellant.

LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN, ANITA R. FLORIO, JJ.


DECISION ORDER

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the appellant's contentions, its proof was insufficient to make out a prima facie case entitling it to summary judgment against the respondents. There was no showing that the appellant's affiant, Bernard Kroll, the president of its surety bond claims agent, Surety Insurance Claims Contractors, Inc., and not the appellant's employee, had the requisite personal knowledge of the payments he alleges the appellant made. Thus, his affidavit was insufficient as a matter of law (see, Republic Nat. Bank of N.Y. v. Luis Winston, Inc., 107 A.D.2d 581 ; see also, Romano v. Stanley, 90 N.Y.2d 444 ; cf., Grosvenor v. Niemand Brothers, 149 A.D.2d 459 ).

Furthermore, the appellant failed to show that the document characterized by Kroll as its "accounting summary" of May 25, 1998, upon which Kroll's affidavit relied, qualified as an admissible business record or as anything more than hearsay. There was no proof that this document was made in the regular course of business, that it was made according to established procedures, or that the entries were made contemporaneously with the recorded transactions (see, People v. Cratsley, 86 N.Y.2d 81 ).

Thus, since the requirements set forth in the indemnity agreement were not satisfied, the appellant failed to make out its prima facie case. Summary judgment was therefore properly denied (see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 ; Winegrad v. New York Univ. Med. Ctr., 46 N.Y.2d 85).

In light of this determination, we need not reach the parties' remaining contentions.

BRACKEN, J.P., JOY, GOLDSTEIN, and FLORIO, JJ., concur.


Summaries of

Republic Western Insurance v. RCR Builders, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Jan 31, 2000
268 A.D.2d 574 (N.Y. App. Div. 2000)
Case details for

Republic Western Insurance v. RCR Builders, Inc.

Case Details

Full title:REPUBLIC WESTERN INSURANCE COMPANY, appellant, v. RCR BUILDERS, INC., et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 31, 2000

Citations

268 A.D.2d 574 (N.Y. App. Div. 2000)
702 N.Y.S.2d 609

Citing Cases

Ramirez v. Genovese

In his affidavit, Mr. Webb alleges that he is the branch manager, that Securitas was retained by…

People v. McGovern

The District Attorney's office argues that since the deponent detective reviewed and examined a copy of the…