TWIN CITY FIRE INSURANCE COMPANY v. 9052 LLC (2022)

In this breach-of-contract action for amounts allegedly owed in insurance premiums, plaintiff, Twin City Fire Insurance Company, moves for summary judgment against defendant, 9052 LLC d/b/a WeClean (WeClean). Twin City's motion is denied.

Twin City alleges that it issued one-year insurance policies to WeClean with an effective date of June 11, 2018; and that both policies were canceled in October 2018 for nonpayment of premiums. WeClean contends that “it never requested or agreed” to be bound by the policies at issue. (See NYSCEF No. 4 at ¶¶ 4-6.) Rather, it asserts that an insurance broker—whom WeClean has named as a third-party defendant in this case—made a “unilateral decision, in its capacity of insurance broker for WeClean, to bind coverage” without WeClean's authorization or approval. (NYSCEF No. 5 at ¶ 24.)

To succeed on a motion for summary judgment, the movant must “establish his cause of action or defense sufficient to warrant the court as a matter of law in directing judgment in his favor ․, and he must do so by tender of evidentiary proof in admissible form.” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980] [internal quotation marks omitted].) Once this showing has been made, “the burden shifts to the party opposing the motion ․ to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].)

Twin City's summary-judgment motion must be denied because Twin City's motion papers do not satisfy its initial prima facie burden.

Twin City relies on an affidavit from its custodian of records. (See NYSCEF No. 14.) But it fails to attach the necessary documentary support. For instance, the affidavit alleges that invoices were sent to WeClean “[a]t various times,” yet fails to attach copies of these invoices or to specify the dates and times at which the invoices were sent. (Id. at ¶ 17.) The affidavit also states that WeClean's manager, Stephen Cooperberg (see NYSCEF No. 28), “was included on numerous emails in which insurance coverage for the Defendant was requested.” (NYSCEF No. 14 at ¶ 25.) But the affidavit does not attach those emails. Absent the supporting documents referenced by the affiant, the affidavit is merely “inadmissible hearsay.” (Bank of NY Mellon v Gordon, 171 AD3d 197, 205-206 [2d Dept 2019] [“Evidence of the contents of business records is admissible only where the records themselves are introduced.”] [internal quotation marks omitted].)

Even if this court were to conclude that Twin City had made out a prima facie showing, WeClean's evidence in opposition suffices to create a material dispute of fact. A question exists, for example, about whether and when WeClean agreed to be bound to the policy. WeClean has submitted evidence suggesting that it believed that it had only ever received a proposal for coverage from Foa, which it then rejected. (See NYSCEF No. 30; see also NYSCEF No. 29 [Twin City insurance policy proposal].) WeClean further cites to two emails that it sent in August 2018 and January 2019 expressly informing Foa of its rejection of Twin City's proposal. (See NYSCEF No. 30.) Finally, WeClean provides copies of the insurance policy and binder that it obtained from a different carrier in August 2018, suggesting that it had not purchased insurance prior to that. (See NYSCEF Nos. 31, 32.) In these circumstances, no basis exists to grant Twin City summary judgment.

Accordingly, it is

ORDERED that Twin City's motion for summary judgment under CPLR 3212 is denied; and it is further

ORDERED that WeClean serve a copy of this order with notice of its entry on all parties.

Gerald Lebovits, J.