Seneca Insurance v. Certified Moving & Storage Co. , 920 N.Y.2d 320 ( 2011 )

This action arose out of plaintiffs claim that it was entitled to recover premiums due under a commercial general liability insurance policy issued to defendants. We reject plaintiffs argument that the documentary evidence, including the affidavits of its senior officers explaining the methodology used in calculating premiums, and all of the applicable Insurance Services Office (ISO) rules adopted by plaintiff regarding premium computation, as well as its filed rates, was sufficient to make out a prima facie showing of entitlement to judgment as a matter of law (see Commissioners of State Ins. Fund v Beyer Farms, Inc., 15 AD3d 273, 274 [2005], lv denied 5 NY3d 707 [2005]), as the extrinsic evidence failed to address the rating classification issue at the heart of this matter — how defendants’ installers were to be classified in the context of the moving and storage industry.

Equally unavailing is defendants’ argument that the opinion of its expert requires as a matter of law the conclusion that its installation payroll was “incidental” to the moving and storage industry, and that plaintiffs attempt to separately classify and retroactively calculate the installation payroll deviated from standard underwriting practices in connection with this industry. Because the expert’s affidavit demonstrates no personal knowledge of defendants’ installation operations, or how ISO rules pertaining to “helpers” would preclude defendants’ installers from its premium calculations (see e.g. Santoni v Bertelsmann Prop., Inc., 21 AD3d 712, 714-715 [2005]), it merely creates a question of fact as to the proper manner of calculating Certified’s premium. The absence of a competing expert’s affidavit does not require a grant of summary judgment under these circumstances. Similarly, the issue of how ISO rules and tables should be interpreted or applied is best left to trial.

Plaintiffs request to dismiss defendants’ remaining affirmative defenses was properly denied, as the documentary evidence and deposition testimony presented issues of fact as to whether defendants intentionally concealed payroll, or whether plaintiff improperly calculated premium (see Morgenstern v Cohon, 2 NY2d 302, 307 [1957]).

Plaintiffs request to amend the ad damnum clause to reflect the proper amount of unpaid insurance premiums allegedly due on the basis of defendants’ payroll records, although misdescribed as a request for an order “conforming the pleading to the proof,” should have been granted, in view of the absence of prejudice to defendant (see CPLR 3025 [b]; Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]).

We find the remaining arguments unavailing. Concur — Tom, J.P, Saxe, Renwick and DeGrasse, JJ.