Comm'rs of State Ins. Fund v. Crossroad Servs. Grp. Inc., Index No. 402531/2011
| Decision Date | 07 February 2014 |
| Docket Number | Index No. 402531/2011 |
| Citation | 2014 NY Slip Op 30431 |
| Parties | COMMISSIONERS OF STATE INSURANCE FUND, Plaintiff v. CROSSROAD SERVICES GROUP INC., Defendant |
| Court | New York Supreme Court |
DECISION AND ORDER
Plaintiff moves for summary judgment on account stated and breach of contract claims for Workers' Compensation insurance premiums of $36,426.28, plus $4,168.91 in collection charges permitted by New York State Finance Law § 18, for an insurance policy period of February 6, 2007, to November 10, 2008. C.P.L.R. § 3212(b). For the reasons explained below, the court denies plaintiff's motion.
No affidavit on personal knowledge to support plaintiff's account stated claim attests that its statements of account were transmitted to defendant by the witness or according to a regular business procedure: an essential element of an account stated claim. Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d 161, 162 (1st Dep't 2005); Bartning v. Bartning, 16 A.D.3d 249, 250 (1st Dep't 2005). See, e.g., Hermitage Ins. Co. v. Zaidman, 107 A.D.3d 579, 580 (1st Dep't 2013); State Farm Mut. Auto. Ins. Co. v. KanKam, 3 A.D.3d 418, 419 (1st Dep't 2004);8112-24 18th Ave. Realty Corp. v. Aetna Cas. & Sur. Co., 240 A.D.2d 287, 288 (1st Dep't 1997). Defendant's president Raymond Carazo, on the other hand, specifically attests to its regular business procedures for receipt and logging of its incoming mail and for responding to invoices. Brito v. Allstate Ins. Co., 102 A.D.3d 477, 478 (1st Dep't 2013). Based on his personal knowledge, defendant never received the statements of account or invoices upon which plaintiff seeks to collect. Although defendant admits payments of billed premiums, which may establish receipt of the corresponding bills, LePatner & Assoc., LLP v. Horowitz, 81 A.D.3d 472 (1st Dep't 2011); Kramer Levin Naftalis & Frankel LLP v. Canal Jean Co., Inc., 73 A.D.3d 604, 605 (1st Dep't 2010), the payments were not for the amounts plaintiff seeks to collect. RPI Professional Alternatives, Inc. v. Citigroup Global Mkts. Inc., 61 A.D.3d 618, 619 (1st Dep't 2009); Reid & Priest v. Realty Asset Group, 250 A.D.2d 580 (1st Dep't 1998); Citibank (S.D.), N.A. v. Brown-Serulovic, 97 A.D.3d 522, 523 (2d Dep't 2012).
Plaintiff's underwriter attests to plaintiff's audit of defendant's records to ascertain the premiums owed and to the absence of defendant's protest to the audit, but fails to demonstrate personal knowledge of the audit and defendant's communications to the auditor. Defendant's president Carazo, on the other hand, specifically identifies another person as the auditor, to whom he expressed his protests to plaintiff's assessment of premiums based on its count of defendant'semployees that defendant disputed. See RPI Professional Alternatives, Inc. v. Citigroup Global Mkts. Inc., 61 A.D.3d at 619); Herrick, Feinstein LLP v. Stamm, 297 A.D.2d 477, 478 (1st Dep't 2002). Carazo describes the additional compensation paid by defendant for services to it, on which plaintiff assessed the additional premiums, as compensation to two entities that were independent contractors and performed work for defendant outside New York, in California and Florida.
New York Workers' Compensation Law § 10(1) requires every employer to "secure compensation to his employees" for injuries or death arising from their employment. Plaintiff fails to establish either that the two entities defendant identifies were not the employees plaintiff counted to assess the additional premiums or that these entities were "employees" requiring Workers' Compensation insurance under Workers' Compensation Law § 10(1). Plaintiff suggests that, if defendant hired independent contractors rather than employees, then the independent contractors were required to carry their own Workers' Compensation insurance, or otherwise defendant was required to secure the insurance for their employees, who would be counted as defendant's employees for purposes of assessing defendant's premiums. Plaintiff cites no authority for this proposition, but even if such a requirement applies, plaintiff fails to carry its burden to show that any independent contractors hired by defendant did not carry Workers' Compensation insurance or even that such a reason was why plaintiff attributed additionalemployees to defendant.
Finally, plaintiff fails to establish that the additional employees it attributed to defendant were employed in New York. For Workers' Compensation Law § 10(1) to apply, the employment must have "sufficient and significant contacts" with New York "to support a reasonable conclusion that the employment was to some extent sited in this state." Deraway v. Bulk Storage, Inc., 51 A.D.3d 1313, 1314 (3d Dep't 2008). See Edick v. Transcontinental Refrigerated Lines, Inc., 300 A.D.2d 848, 849 (3d Dep't 2002). Here, the employer conducts business in New York, but no evidence indicates the employees in question performed any of their assignments in New York or ever were even present in New York. See Deraway v. Bulk Storage, Inc., 51 A.D.3d at 1314. No evidence indicates whether defendant travelled to California or Florida to recruit and hire the independent contractors or employees in question or hired them...
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