Opinion
05-07-2024
COMMISSIONERS OF the STATE INSURANCE FUND, Plaintiff–Appellant, v. CALL–A–HEAD CORP., et al., Defendants–Respondents.
State Insurance Fund, New York (Isaac N. Guy Okafor of counsel), for appellant. The Scher Law Firm, LLP, Garden City (Austin Graff of counsel), for respondents.
State Insurance Fund, New York (Isaac N. Guy Okafor of counsel), for appellant.
The Scher Law Firm, LLP, Garden City (Austin Graff of counsel), for respondents.
Webber, J.P., Moulton, Friedman, González, Mendez, JJ.
Order, Supreme Court, New York County (Suzanne Adams, J.), entered November 14, 2023, which denied the motion of plaintiff Commissioners of the State Insurance Fund (SIF) for summary judgment against defendants in the amount of $943,018.60 with leave to renew following the completion of discovery, unanimously reversed, on the law, without costs, and the motion granted.
[1] SIF established prima facie entitlement to summary judgment through submission of its business records, which include defendants’ insurance policy, the requests for the inclusion of defendants Charles Howard and Call–A–Head Corp., statements of account, audit worksheets, and a balance summary that demonstrated the amounts due under the policy for the years in question (see Commissioners of the State Insurance Fund v. Titanium Interiors, Inc., 180 A.D.3d 563, 563, 120 N.Y.S.3d 14 [1st Dept. 2020]; see also Commissioners of State Ins. Fund v. Beyer Farms, Inc., 15 A.D.3d 273, 274, 792 N.Y.S.2d 380 [1st Dept. 2005]). In addition, SIF’s evidence on its motion sufficiently accounted for payments already made by defendants.
[2] The affidavit of SIF’s underwriter was sufficient to authenticate its business records, as he was familiar with SIF’s record keeping and, based on his review of the records, had personal knowledge of the facts and circumstances surrounding defendants’ insurance policy (see Commis- sioners of State Insurance Fund v. Sanitation Salvage Corp., 187 A.D.3d 537, 537, 130 N.Y.S.3d 665 [1st Dept. 2020]). The underwriter further averred that the audit worksheets and statements of accounts were made in the regular course of SIF’s business (CPLR 4518[a]), and that the data in these records were input contemporaneously with or shortly after the particular transaction occurred (see Commissioners of State Insurance Fund, 187 A.D.3d at 537, 130 N.Y.S.3d 665).
[3, 4] In opposition to plaintiff’s prima facie showing, defendants failed to raise a triable issue of fact, as they submitted only an unsworn memorandum of law from their counsel, who had no personal knowledge of the facts (see Sirico v. F.G.G. Prods., Inc., 71 A.D.3d 429, 432, 896 N.Y.S.2d 61 [1st Dept. 2010]). They also submitted no evidence to show that SIF miscalculated the premiums owed under its policy (see Commissioners of State Insurance Fund v. Yesmont & Assoc., Inc., 226 A.D.2d 147, 148, 640 N.Y.S.2d 86 [1st Dept. 1996]; Commissioners of State Ins. Fund v. Fox Run Farms, Inc., 195 A.D.2d 372, 375, 600 N.Y.S.2d 239 [1st Dept. 1993]). Defendants’ mere hope that discovery will yield evidence of a triable issue of fact is insufficient to deny SIF’s summary judgment motion, particularly where defendants are in possession of the books and payroll records that SIF relied on to calculate the premiums owed (see e.g. 800 Third Ave. Assoc., LLC v. Roadrunner Capital Partners LLC, 214 A.D.3d 429, 429–430, 185 N.Y.S.3d 67 [1st Dept. 2023]).