REPUBLIC WESTERN INSURANCE COMPANY v. (and a third-party action).

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Supreme Court, Appellate Division, Second Department, New York.

REPUBLIC WESTERN INSURANCE COMPANY, appellant, v. RCR BUILDERS, INC., et al., respondents, et al., defendant (and a third-party action).

Decided: January 31, 2000

LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN and ANITA R. FLORIO, JJ. Agovino & Asselta, LLP, New Hyde Park, N.Y. (Joseph O. Asselta of counsel), for appellant.

In an action to recover damages for breach of an indemnity agreement, the plaintiff appeals from an order of the Supreme Court, Queens County, (Dye, J.), dated October 21, 1998, which denied its motion for summary judgment as against the defendants RCR Builders, Inc., Vasilios Xanthakos, and Dimitrios Xanthakos.

ORDERED that the order is affirmed, without costs or disbursements.

 Contrary to the appellant's contentions, its proof was insufficient to make out a prima facie case entitling it to summary judgment against the respondents.   There was no showing that the appellant's affiant, Bernard Kroll, the president of its surety bond claims agent, Surety & Insurance Claims Contractors, Inc., and not the appellant's employee, had the requisite personal knowledge of the payments he alleges the appellant made.   Thus, his affidavit was insufficient as a matter of law (see, Republic Nat. Bank of N.Y. v. Luis Winston, Inc., 107 A.D.2d 581, 483 N.Y.S.2d 311;  see also, Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589, 684 N.E.2d 19;  cf., Grosvenor v. Niemand Brothers, 149 A.D.2d 459, 539 N.Y.S.2d 793).

 Furthermore, the appellant failed to show that the document characterized by Kroll as its “accounting summary” of May 25, 1998, upon which Kroll's affidavit relied, qualified as an admissible business record or as anything more than hearsay.   There was no proof that this document was made in the regular course of business, that it was made according to established procedures, or that the entries were made contemporaneously with the recorded transactions (see, People v. Cratsley, 86 N.Y.2d 81, 629 N.Y.S.2d 992, 653 N.E.2d 1162).

Thus, since the requirements set forth in the indemnity agreement were not satisfied, the appellant failed to make out its prima facie case.   Summary judgment was therefore properly denied (see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of this determination, we need not reach the parties' remaining contentions.


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