Burlington Ins. Co. v. 54th St. Auto Ctr., Inc.

2022 NY Slip Op 04779

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 2, 2022
• Docket: Index No. 156539/20 Appeal No. 15991 Case No. 2021-04472
• Status: Published

Opinion

Burlington Ins. Co. v 54th St. Auto Ctr., Inc. (2022 NY Slip Op 04779)

Burlington Ins. Co. v 54th St. Auto Ctr., Inc.

2022 NY Slip Op 04779

Decided on August 02, 2022

Appellate Division, First 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 and Entered: August 02, 2022
Before: Renwick, J.P., Friedman, Gesmer, Mendez, Higgitt, JJ.

Index No. 156539/20 Appeal No. 15991 Case No. 2021-04472

[*1]The Burlington Insurance Company, Plaintiff-Appellant,

v

54th Street Auto Center, Inc., Defendant-Respondent.

Soffer, Rech & Borg, LLP, Mineola (Michael A. Borg of counsel), for appellant.

Rosen Law LLC, Great Neck (Gary Rosen of counsel), for respondent.

Order, Supreme Court, New York County (Arthur Engoron, J.), entered November 30, 2021, which, to the extent appealed from, denied plaintiff's motion for summary judgment on its claim for unpaid premiums due, unanimously affirmed, without costs.

Plaintiff's motion for summary judgment was made before any discovery had been conducted and was therefore premature (see Reid v St. Luke's-Roosevelt Hosp. Ctr., 191 AD3d 545, 547 [1st Dept 2021]; Blech v West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]; CPLR 3212[f]). In opposition, defendant pointed out that this was plaintiff's second motion and that no new evidence had been presented. It submitted an affidavit by its president, who averred, "Plaintiff possesses documents that will prove my defenses against their claim against me, and discovery is needed in order to obtain these documents." Moreover, defendant raised an issue of fact as to the accuracy of the audit on which the premium was based by submitting an affidavit by a certified public accountant with personal knowledge of the audit who averred that he had communicated with plaintiff's auditor that the audit was incorrect and requested a second audit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: August 2, 2022