Commissioners of State Insurance Fund v. D & M Leasing, Inc. , 686 N.Y.S.2d 32 ( 1999 )

Order, Supreme Court, New York County (Elliott Wilk, J.), entered October 28, 1997, which, in an action to recover unpaid workers’ compensation insurance premiums, insofar as appealed from, denied plaintiff’s cross motion for a disclosure sanction prohibiting defendant from contesting the accuracy of plaintiff’s estimated audits, unanimously affirmed, without costs.

Plaintiff’s cross motion for a disclosure sanction was based on defendant’s representation in support of its main motion for a protective order that most of the records plaintiff was demanding were no longer available “merely by [reason of] lapse of time”. The cross motion was properly denied upon a record insufficient to determine whether defendant, described in its application for workers’ compensation insurance as a “taxicab broker”, rather than the individual medallion owners for whom defendant found drivers, was the party responsible for providing workers’ compensation insurance for the drivers indicated in plaintiffs audit. To date, there is no basis for finding that defendant either failed to maintain proper records or refused to provide plaintiff with access to appropriate records at the time of the audit. Concur — Sullivan, J. P., Ellerin, Williams and Tom, JJ.