Commissioners of the State Ins. Fund v. BSB Constr., Inc.

• Decision Date: 03 November 2016
• Parties: COMMISSIONERS OF the STATE INSURANCE FUND, Respondent, v. BSB CONSTRUCTION, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1236
41 N.Y.S.3d 761
2016 N.Y. Slip Op. 07249

COMMISSIONERS OF the STATE INSURANCE FUND, Respondent,
v.
BSB CONSTRUCTION, INC., Appellant.

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

Nov. 3, 2016.

41 N.Y.S.3d 762

Corbally, Gartland & Rappleyea, LLP, Poughkeepsie (Jon Holden Adams of counsel), for appellant.

William O'Brien, State Insurance Fund, Albany (Robert C. Kinkead of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, DEVINE, CLARK and MULVEY, JJ.

MULVEY, J.

144 A.D.3d 1237

Appeal from an order and judgment of the Supreme Court (O'Connor, J.), entered May 6, 2015 in Albany County, which granted plaintiff's motion for summary judgment.

In October 2013, plaintiff, defendant's workers' compensation carrier from May 2001 to May 2012, commenced an action against defendant for unpaid workers' compensation premiums totaling $68,380.39. After joinder of issue, plaintiff served three notices to admit, which, among other things, afforded defendant the opportunity to dispute certain payroll amounts that formed the basis for the premium calculations pursuant to the terms of the policy. Defendant responded to the first notice to admit and, thereafter, plaintiff moved for summary judgment. Supreme Court granted such motion, and defendant now appeals.

We affirm. Defendant argues that summary judgment in plaintiff's favor was improper

41 N.Y.S.3d 763

because it raised triable issues of fact, that it was not required to commence an administrative appeal to contest certain classifications of employees, the signature of defendant's office manager on the audit statements is not binding, and that it is not responsible for the workers' compensation premiums of one of its uninsured subcontractors. Plaintiff counters that there are no issues of fact precluding summary judgment in its favor given that the time in which to contest payroll classifications has run, defendant is responsible for the acts of its office manager, and that general contractors, such as defendant, are liable for workers' compensation payments for uninsured subcontractors and, under the provisions of the policy, plaintiff may charge defendant a premium if defendant's subcontractors do not have their own workers' compensation insurance.

A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b] ; see Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; Stubbs v. Ellis Hosp., 68 A.D.3d 1617, 1618, 892 N.Y.S.2d 606 [2009] ). The moving party's evidence “must be viewed in

144 A.D.3d 1238

the light most favorable to the nonmovant, affording the nonmovant every favorable inference” (Andrew R. Mancini Assoc., Inc. v. Mary Imogene Bassett Hosp., 80 A.D.3d 933, 935, 914 N.Y.S.2d 449 [2011] [internal quotation marks and citation omitted]; see Walton v. Albany Community Dev. Agency, 279 A.D.2d 93, 94–95, 718 N.Y.S.2d 456 [2001] ). Once the moving party satisfies its burden by establishing a prima facie case, the burden shifts to the nonmoving party to produce competent evidence that raises a material question of fact (see Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; DiBartolomeo v. St. Peter's Hosp. of the City of Albany, 73 A.D.3d 1326, 1326, 901 N.Y.S.2d 389 [2010] ). As relevant here, “[i]n an action to recover unpaid workers' compensation premiums, [a showing of entitlement to judgment as a matter of law] typically includes the insurance application, the policy, audit work sheets, resulting invoices and statements of accounts for the balance due” (Legion Ins. Co. v. Northeastern Plate Glass Corp., 41 A.D.3d 933, 934, 837 N.Y.S.2d 430 [2007] ; see Commissioners of State Ins. Fund v. Albany Capitaland Enters., Inc., 18 A.D.3d 934, 935, 18 A.D.3d 934 [2005] ; Family Coatings v. Michigan Mut. Ins. Co., 170 A.D.2d 816, 817, 566 N.Y.S.2d 106 [1991] ), all of which plaintiff submitted, along with, among other things, affidavits from its attorney and underwriter, its notices to admit and defendant's reply to the first notice to admit.

The record shows that plaintiff issued a workers' compensation insurance policy to defendant in May 2001, and the policy was canceled in May 2012. After cancellation, a final audit of defendant's records was performed, which determined that defendant owed a premium balance. Plaintiff also submitted an affidavit from Joann March, plaintiff's underwriter, who explained that, when calculating premiums, defendant's policy—a guaranteed cost plan—required that defendant's payroll be separated into different job classifications in order to determine the basis for the premium. March then provided information pertaining to each audit bill, credit and adjustment, and she additionally discussed the last audit bill for the period May 30, 2011 to May 30, 2012. March

41 N.Y.S.3d 764

explained that SJ Green Inc., a subcontractor working for defendant, was initially not included on the...