Safeguard Insurance v. E. Tetz & Sons, Inc.

271 A.D.2d 516, 706 N.Y.S.2d 351, 2000 N.Y. App. Div. LEXIS 4069

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2000
• Status: Published

Opinion

—In an action to recover insurance premiums, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated May 20, 1999, which denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, and the failure to sustain this initial burden requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Schwartz & Co. v G & H Real Estate Holding Corp., 265 AD2d 316). Contrary to the plaintiffs contention, the brief affidavit of its employee and the documentary evidence it submitted in support of its motion were insufficient to establish, as a matter of law, that it properly calculated the additional premiums allegedly due on the policy (see, St. Paul Fire & Mar. Ins. Co. v Capri Constr. Corp., 78 NY2d 1016; cf., Family Coatings v Michigan Mut. Ins. Co., 170 AD2d 816). Accordingly, the Supreme Court did not err in denying the motion. Thompson, J. P., Krausman, Florio and Schmidt, JJ., concur.