The Appellate Division affirmed the denial of plaintiff's motion for summary judgment on its claim for unpaid premiums due. The motion was made before any discovery had been conducted and, therefore, was premature. 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." In addition, 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.
Burlington Ins. Co. v. 54th St. Auto Ctr., Inc., NY Slip Op 04779 (1st Dep't August 2, 2022)
