BURLINGTON INS. CO. v. CASUR CORP.

2014-06707

123 A.D.3d 965 (2014)

1 N.Y.S.3d 150

2014 NY Slip Op 08951

BURLINGTON INSURANCE COMPANY, Appellant, v. CASUR CORPORATION, Respondent.

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

Decided December 24, 2014.


Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the complaint is granted.

The plaintiff insurer established its prima facie entitlement to judgment as a matter of law on the complaint by submitting the subject insurance policy, the audit statement, and the affidavit of the plaintiff's accounts receivable and collections manager. These submissions demonstrated that, pursuant to an audit and revised audit, which were conducted after expiration of the policy in accordance with the terms of the policy, the defendant owed an additional $134,550 in premiums (see Evanston Ins. Co. v Po Wing Hong Food Mkt., Inc., 21 A.D.3d 333 [2005]; cf. Essex Ins. Co. v Laruccia Constr., Inc., 71 A.D.3d 818 [2010]; Safeguard Ins. Co. v Tetz & Sons, 271 A.D.2d 516 [2000]). In opposition, the defendant failed to raise a triable issue of fact.

To the extent that the defendant argues that the plaintiff's motion for summary judgment was premature, this contention is without merit. A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant (see CPLR 3212[f]; Singh v Avis Rent A Car Sys., Inc., 119 A.D.3d 768 [2014]; Williams v Spencer-Hall, 113 A.D.3d 759 [2014]). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 A.D.3d 759, 760 [2006]; see Williams v Spencer-Hall, 113 A.D.3d 759 [2014]; Rungoo v Leary, 110 A.D.3d 781 [2013]). Here, the defendant failed to indicate what evidence discovery may uncover, in addition to what has already been produced.

The defendant's remaining contentions are without merit.

Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint.


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