Burlington Insurance v. Casur Corp. , 1 N.Y.S.3d 150 ( 2014 )

Burlington Ins. Co. v Casur Corp. (2014 NY Slip Op 08951)

Burlington Ins. Co. v Casur Corp.

2014 NY Slip Op 08951

Decided on December 24, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 24, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.

2014-06707
(Index No. 634/14)

[*1]Burlington Insurance Company, appellant,

v

Casur Corporation, respondent.

Soffer Rech & Borg, LLP, New York, N.Y. (Michael A. Borg of counsel), for appellant.

Kissel, Hirsch & Wilmer LLP, Tarrytown, N.Y. (Frederick Wilmer of counsel), for respondent.

DECISION & ORDER

In an action to recover unpaid insurance premiums, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brown, J.), entered May 14, 2014, which denied its motion for summary judgment on the complaint.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the complaint is granted.

The plaintiff insurer established its prima facie entitlement to judgment as a matter of law on the complaint by submitting the subject insurance policy, the audit statement, and the affidavit of the plaintiff's accounts receivable and collections manager. These submissions demonstrated that, pursuant to an audit and revised audit, which were conducted after expiration of the policy in accordance with the terms of the policy, the defendant owed an additional $134,550 in premiums (see Evanston Ins. Co. v Po Wing Hong Food Mkt., Inc., 21 AD3d 333; cf. Essex Ins. Co. v Laruccia Constr., Inc., 71 AD3d 818; Safeguard Ins. Co. v Tetz & Sons, 271 AD2d 516). In opposition, the defendant failed to raise a triable issue of fact.

To the extent that the defendant argues that the plaintiff's motion for summary judgment was premature, this contention is without merit. A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant (see CPLR 3212[f]; Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768; Williams v Spencer-Hall, 113 AD3d 759). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Williams v Spencer-Hall, 113 AD3d 759; Rungoo v Leary, 110 AD3d 781). Here, the defendant failed to indicate what evidence discovery may uncover, in addition to what has already been produced.

The defendant's remaining contentions are without merit.

Accordingly, the Supreme Court should have granted the plaintiff's motion for [*2]summary judgment on the complaint.

DILLON, J.P., DICKERSON, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court