Preview
FILED: KINGS COUNTY CLERK 08/28/2019 04:03 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ATLANTIC CASAULTY INSURANCE
COMPANY,
Index No.: 510798/2018
Plaintiff,
v.
NOTICE OF APPEAL
EASTERN FRUIT & VEGETABLES INC.
Defendant.
PLEASE TAKE NOTICE, that Plaintiff, Atlantic Casualty Insurance Compairf hcrchy
appeals to the Appellate Division - Second Department of the Supreme Court of the State of
New York, from each and part of the Order dated 2, 2019 (Honorable Carl L==Æ·÷o
every July
J.S.C.) that was issued in the above-captioned action and entered by the Clerk of the New York
County Supreme Court on July 15, 2019, a copy of which, along with its Notice of Entry, is
annexed hereto as Exhibit A.
Dated: August 27, 2019
White Plains, New York
KEID WEL ON CU NINGHAM, LLP
By:
ebra M. Krebs, s .
Ro alker is, Esq.
Attorneys for Plaintiff
925 Westchester Avenue, Suite 400
White Plains, New York 10604
Tel: (914) 948-7000
Fax: (914) 948-7010
TO: L. Blake Morris, Esq.
Attorney for Defendant
1214 Corteloyou Road
Brooklyn, NY 11218-5404
(718) 826-8401
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Supreme sourt of tip
9tate of New yorlt
Appellate Binision: Second luhicial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
Case Title: Set forth the title o f the case as it appears on the unnmons. notice of petition or order to For Court of Original Instance
show cause by which the matter was or is to be commenced. or as amended.
ATLANTIC CASUALTY INSURANCE COMPANY
Date Notice of Appeal Filed
- against -
EASTERN FRUIT & VEGETABLES INC· For Appellate Division
Case Type
Civil Action O CPLR article 78 Proceeding Appeal O Transferred Proceeding
O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR Article 78
O CPLR Article 78 O Executive Law § 298
O Habeas Corpus Proceeding
O Eminent Domain O CPLR 5704 Review
O Labor Law 220 or 220-b
O Public Officers Law § 36
Real Property Tax Law § 1278
O Administrative Review O Business Relationships O Commercial Contracts
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole
O Real Property O Statutory O Taxation O Torts
(other than foreclosure)
Informational Statement - Civil
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Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
O Amended Decree O Determination B Order O Resettled Order
O Amended Judgement O Finding O Order & Judgment O Ruling
O Amended Order O Interlocutory Decree O Partial Decree O Other (specify):
B Decision O Interlocutory judgment O Resettled Decree
O Decree O Judgment O Resettled Judgment
Court: Supreme Court County: Kings
Dated: 07/02/2019 Entered:07/15/2019
Judge (name in full): Hon. Carl Landicino Index No.: 510798/2018
Stage: B Interlocutory O Final O Post-Final Trial: O Yes B No If Yes: O jury O Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in the same action or proceeding currently pêñd|iig in the court? O Yes R No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where apprepiiate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
Commêñced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
Court: Choose Court County: Choose County
Judge (name in full): Order of Transfer Date:
_Court: Choose Court County: Choose Countv
Judge (name in full): Dated:
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commeñced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
Plaintiff appeals from each and every part of the Decision and Order dated July 2, 2019 which granted that part of Atlantic
Casualty's motion for summcuy judgmêñt which sought to dismiss Defêñdant's counterclaim and etherwise denied Atlantic
Casualty's motion for summary judgnieiit, and which denied Defêñdant's cross-motion to dismiss, finding an issue of fact
exists with respect to the issue raised therein.
Informational Statement - Civil
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Issues: Specify the issues proposed to be raised on the appeal, praceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific relief sought on appeal.
Whether the lower court erred in findiñÿ an issue of fact with respect to the issue raised in Defendant's
cross-motion to dismiss; and whether the lower court erred in denying that part of Atlantic Casualty's
motion which sought summary judgment on its claims against Defendant.
Instructions: Fill in the name of each party to the action or preceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this
form is to be filed for a proceeding cemmenced in this court, fill in only the party's name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
1 Atlantic Casualty Insurance Company Plaintiff Appellant
2 Eastem Fruit and Vegeteb!es, Inc. Defendant Respoñdeñt
3
4
5
6
7
8 __
9
10
11
12
13
14
15
16
17
18
19
20
Inforrñationâ| Statement - Civil
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Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or order to show cause by which a special
proceeding is to be commenced in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supp|ied
in the spaces provided.
Attorney/Firm Name: Keidel, Weldon & Cunningham, LLP
Address:925 Westchester Avenue, Suite 400
City: White Plains State: New York Zip:10604 Telephone No: (914) 948-7000
E-mail Address: dkrebs@kwellp.com
Attorney Type: hi Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number (s) from table above): 1
Attorney/Firm Name: L Blake Monis, Esq.
Address: 1214 Cortelyou Road
City: Brooklyn State: New York Zip: 11218-5404 Telephone No: (718) 826-8401
E-mail Address: Blake@!b!ekemorris.com
Attorney Type: lia Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above): 2
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party ñümber(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Goverñmêñt O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: | Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Goverñméñt O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party ñümber(s) from table above):
Informational Statemani- Civil
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FILED:
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STATE OF NEW YORK
SUPREME COURT COUNTY OF KINGS
____________________________________
ATLANTIC CA5UALTY INSURANCE Index No.: 510798/2018
COMPANY,
Plaintiff,
-against-
NOTICE OF ENTRY
EASTERN FRUIT & VEGETABLES, INC.,
Defendant.
______________________________
PLEASF)TAKE NOTICE that the within is a copy of an Order on Motion eliteied in
this action on the 15thday of July, 2019, in the office of the Clerk of the County of Kings.
Dated: July 29, 2019
Muditha Halliyadde, Esq.
RELIN GOLDSTEIN & CRANE LLP
Attorneys for Plaintiff
28 E. Main Street, Suite 1800
Rochester, New York 14614
Telephone: (585) 325-6202
TO: L. BLAKE MORRIS, ESQ.
1214 COkTELYOU ROAD
BROOKLYN, NEW YORK 11218
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|FILED : KINGS COUNTY CLERK 07 /15 / 2 019
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/23/2019
At an IAS Term, Part 81 of the Supreme Court
of the State of New York, held in and for the
O
County of Kings, at the Courthouse, at Civic
2nd
Center, Brooklyn, New York., on the day
of July 2019.
P R E S E N T.
HON. CARL J. LANDICINO,
Justice
- --------- - - -- - -- - - -- - ---- - - ----- - - - X
ATLANTIC CASUALTY INSURANCE COMPANY,
. Index No. 51079972018
Plaintiff,
DECISION AND ORDER
- against -
EASTERN FRUIT AND VEGETABLES, INC., Motion Seq. #1 and #2
Defendants.
-- ------- ---- ------- - --------- -- - - - - X
The following papers numbered 1 to 8 read herein: Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1-3 4-6
Opposing Affidavits (Affirmations) 5-6 7
Reply Affidavits (Affirmations) __ 7
Supplemental Affirmation 8
Plaintiff, Atlantic Casmity Insurance Company (Atlantic), in this action for an
account stated and breach of contract, moves, pursuant to CPLR 3212, for an order striking
the answer of defendant Eastern Fruit and Vegetables, Inc. (Eastern), dismissing all
counterclaims and granting it summary judgment. Eastern cross-moves to dismiss the
1312(a).1
complaint, pursuant to CPLR3211 (a)(1) and Business Corporations Law(BCL) §
'
While Eastern also sought a stay, pursuant to CPLR 8502 and 8503, that branch of the
cross m.otion has been rendered moot because Atlantic has posted $500.00 as security for costs.
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Background
On May 24, 2018, Atlantic, a North Carolina corporation engaged in the insurance
business, commenced this action against Eastern by filing a summons and a complaint
York"
alleging that it "is duly authorized to issue policies of insurance in the State of New
(complaint at ¶ 1). The complaint further alleges that Atlantic, which "provided certain
commercial general liability insurance coverage"to Eastern, is entitledtorecover$93,141.09
for the unpaid principalbalancesdue on two insurance policies: (1) $69,903.09 under policy
L146001424-1, and (2) $23,238.00 under policy L146001424-2 (id at ¶ 3). The complaint
asserts three causes of action. Breach of the insurance policies, unjust enrichment and an
account stated.
On or about June 29, 2018, Eastern interposed an answer in which it denied the
material allegations in the complaint and asserted affirmative defenses, including: (1)
Atlantic is unlicenced to issue insurance policies in New York and fails to allege licensing
authority in another jurisdiction (secondaffirmative defense), and (2) Atlantic's incapacity
to commence Amd maintain this action (sixth affirmative defense). Eastern also asserted a
counterclaim alleging that it "request[s] reasonable attorney[']s fees in defending this
action."
Atlantic now moves for summary judgment seeking the sum of $93,141.04 that is
allegedly due and owing on the two insurance policies that it issued to Eastern. In support
of its motion, Atlantic submits the affidavit of Suzanne Parrish, its premium audit manager,
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who explains that, pursuant to the terms of the insurance policies, premium audits were
conducted revealing an increase in policy exposure, which resulted in increased premiums.
According to Parrish, Eastern failed to pay the increased premiums, and consequently, policy
L146001424-2 was cancelled. Notably, while Atlantic seeks to collect premiums based on
the insurance policies, Atlantic fails to annex copies of those insurance policies to its moving
papers.
Eastern opposes Atlantic's summary judgment motion and cross-moves to dismiss the
complaint. Eastern submits the affidavit of Asif Jhangir (Jhangir), its president, who attests
that Eastern had a general liability insurance policy with Atlantic for six years and that
Eastern paid an annual premium of approximately $7,000. However, in July 2017, Atlantic
notified Jhangir that Eastern's policy was audited and its premiums would be increased.
Eastern denies knowledge of Atlantic's rights under the insurance policy to conduct an audit
and increase premiums, and asserts that Atlantic failed to specifically plead the terms of the
policy or attach a copy of
Preview
FILED: KINGS COUNTY CLERK 08/28/2019 04:03 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ATLANTIC CASAULTY INSURANCE COMPANY, Index No.: 510798/2018 Plaintiff, v. NOTICE OF APPEAL EASTERN FRUIT & VEGETABLES INC. Defendant. PLEASE TAKE NOTICE, that Plaintiff, Atlantic Casualty Insurance Compairf hcrchy appeals to the Appellate Division - Second Department of the Supreme Court of the State of New York, from each and part of the Order dated 2, 2019 (Honorable Carl L==Æ·÷o every July J.S.C.) that was issued in the above-captioned action and entered by the Clerk of the New York County Supreme Court on July 15, 2019, a copy of which, along with its Notice of Entry, is annexed hereto as Exhibit A. Dated: August 27, 2019 White Plains, New York KEID WEL ON CU NINGHAM, LLP By: ebra M. Krebs, s . Ro alker is, Esq. Attorneys for Plaintiff 925 Westchester Avenue, Suite 400 White Plains, New York 10604 Tel: (914) 948-7000 Fax: (914) 948-7010 TO: L. Blake Morris, Esq. Attorney for Defendant 1214 Corteloyou Road Brooklyn, NY 11218-5404 (718) 826-8401 1 of 14 FILED: KINGS COUNTY CLERK 08/28/2019 04:03 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2019 Supreme sourt of tip 9tate of New yorlt Appellate Binision: Second luhicial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) Case Title: Set forth the title o f the case as it appears on the unnmons. notice of petition or order to For Court of Original Instance show cause by which the matter was or is to be commenced. or as amended. ATLANTIC CASUALTY INSURANCE COMPANY Date Notice of Appeal Filed - against - EASTERN FRUIT & VEGETABLES INC· For Appellate Division Case Type Civil Action O CPLR article 78 Proceeding Appeal O Transferred Proceeding O CPLR article 75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR Article 78 O CPLR Article 78 O Executive Law § 298 O Habeas Corpus Proceeding O Eminent Domain O CPLR 5704 Review O Labor Law 220 or 220-b O Public Officers Law § 36 Real Property Tax Law § 1278 O Administrative Review O Business Relationships O Commercial Contracts O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole O Real Property O Statutory O Taxation O Torts (other than foreclosure) Informational Statement - Civil 2 of 14 FILED: KINGS COUNTY CLERK 08/28/2019 04:03 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2019 Paper Appealed From (Check one only): If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. O Amended Decree O Determination B Order O Resettled Order O Amended Judgement O Finding O Order & Judgment O Ruling O Amended Order O Interlocutory Decree O Partial Decree O Other (specify): B Decision O Interlocutory judgment O Resettled Decree O Decree O Judgment O Resettled Judgment Court: Supreme Court County: Kings Dated: 07/02/2019 Entered:07/15/2019 Judge (name in full): Hon. Carl Landicino Index No.: 510798/2018 Stage: B Interlocutory O Final O Post-Final Trial: O Yes B No If Yes: O jury O Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in the same action or proceeding currently pêñd|iig in the court? O Yes R No If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. Where apprepiiate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: Commêñced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Court: Choose Court County: Choose County Judge (name in full): Order of Transfer Date: _Court: Choose Court County: Choose Countv Judge (name in full): Dated: Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commeñced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. Plaintiff appeals from each and every part of the Decision and Order dated July 2, 2019 which granted that part of Atlantic Casualty's motion for summcuy judgmêñt which sought to dismiss Defêñdant's counterclaim and etherwise denied Atlantic Casualty's motion for summary judgnieiit, and which denied Defêñdant's cross-motion to dismiss, finding an issue of fact exists with respect to the issue raised therein. Informational Statement - Civil 3 of 14 FILED: KINGS COUNTY CLERK 08/28/2019 04:03 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2019 Issues: Specify the issues proposed to be raised on the appeal, praceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific relief sought on appeal. Whether the lower court erred in findiñÿ an issue of fact with respect to the issue raised in Defendant's cross-motion to dismiss; and whether the lower court erred in denying that part of Atlantic Casualty's motion which sought summary judgment on its claims against Defendant. Instructions: Fill in the name of each party to the action or preceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a proceeding cemmenced in this court, fill in only the party's name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status 1 Atlantic Casualty Insurance Company Plaintiff Appellant 2 Eastem Fruit and Vegeteb!es, Inc. Defendant Respoñdeñt 3 4 5 6 7 8 __ 9 10 11 12 13 14 15 16 17 18 19 20 Inforrñationâ| Statement - Civil 4 of 14 FILED: KINGS COUNTY CLERK 08/28/2019 04:03 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2019 Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supp|ied in the spaces provided. Attorney/Firm Name: Keidel, Weldon & Cunningham, LLP Address:925 Westchester Avenue, Suite 400 City: White Plains State: New York Zip:10604 Telephone No: (914) 948-7000 E-mail Address: dkrebs@kwellp.com Attorney Type: hi Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number (s) from table above): 1 Attorney/Firm Name: L Blake Monis, Esq. Address: 1214 Cortelyou Road City: Brooklyn State: New York Zip: 11218-5404 Telephone No: (718) 826-8401 E-mail Address: Blake@!b!ekemorris.com Attorney Type: lia Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): 2 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party ñümber(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Goverñmêñt O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: | Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Goverñméñt O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party ñümber(s) from table above): Informational Statemani- Civil 5 of 14 FILED: FILED : KINGS KINGS COUNTY COUNTY CLERK CLERK 08/28/2019 07/29/2019 04:03 09:52 PM AM| INDEX INDEX NO. NO. 510798/2018 510798/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 44 40 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/28/2019 07/29/2019 STATE OF NEW YORK SUPREME COURT COUNTY OF KINGS ____________________________________ ATLANTIC CA5UALTY INSURANCE Index No.: 510798/2018 COMPANY, Plaintiff, -against- NOTICE OF ENTRY EASTERN FRUIT & VEGETABLES, INC., Defendant. ______________________________ PLEASF)TAKE NOTICE that the within is a copy of an Order on Motion eliteied in this action on the 15thday of July, 2019, in the office of the Clerk of the County of Kings. Dated: July 29, 2019 Muditha Halliyadde, Esq. RELIN GOLDSTEIN & CRANE LLP Attorneys for Plaintiff 28 E. Main Street, Suite 1800 Rochester, New York 14614 Telephone: (585) 325-6202 TO: L. BLAKE MORRIS, ESQ. 1214 COkTELYOU ROAD BROOKLYN, NEW YORK 11218 61 of of 14 8 FILED: FILED : KINGS KINGS COUNTY COUNTY CLERK CLERK 08/28/2019 07/29/2019 04:03 09: 52 PM AM| INDEX INDEX NO. NO. 510798/2018 510798/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 44 40 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/28/2019 07/29/2019 INDEX NO. 510798/2018 |FILED : KINGS COUNTY CLERK 07 /15 / 2 019 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/23/2019 At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the O County of Kings, at the Courthouse, at Civic 2nd Center, Brooklyn, New York., on the day of July 2019. P R E S E N T. HON. CARL J. LANDICINO, Justice - --------- - - -- - -- - - -- - ---- - - ----- - - - X ATLANTIC CASUALTY INSURANCE COMPANY, . Index No. 51079972018 Plaintiff, DECISION AND ORDER - against - EASTERN FRUIT AND VEGETABLES, INC., Motion Seq. #1 and #2 Defendants. -- ------- ---- ------- - --------- -- - - - - X The following papers numbered 1 to 8 read herein: Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-3 4-6 Opposing Affidavits (Affirmations) 5-6 7 Reply Affidavits (Affirmations) __ 7 Supplemental Affirmation 8 Plaintiff, Atlantic Casmity Insurance Company (Atlantic), in this action for an account stated and breach of contract, moves, pursuant to CPLR 3212, for an order striking the answer of defendant Eastern Fruit and Vegetables, Inc. (Eastern), dismissing all counterclaims and granting it summary judgment. Eastern cross-moves to dismiss the 1312(a).1 complaint, pursuant to CPLR3211 (a)(1) and Business Corporations Law(BCL) § ' While Eastern also sought a stay, pursuant to CPLR 8502 and 8503, that branch of the cross m.otion has been rendered moot because Atlantic has posted $500.00 as security for costs. 1 of 7 72 of of 14 8 FILED: FILED : KINGS KINGS COUNTY COUNTY CLERK CLERK 08/28/2019 07/29/2019 04:03 09:52 PM AM INDEX INDEX NO. NO. 510798/2018 510798/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 44 40 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/28/2019 07/29/2019 INDEX NO. 510798/2018 [F ILED : KINGS COUNTY CLERK 07 /15 / 2 0 19| NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 07/23/2019 Background On May 24, 2018, Atlantic, a North Carolina corporation engaged in the insurance business, commenced this action against Eastern by filing a summons and a complaint York" alleging that it "is duly authorized to issue policies of insurance in the State of New (complaint at ¶ 1). The complaint further alleges that Atlantic, which "provided certain commercial general liability insurance coverage"to Eastern, is entitledtorecover$93,141.09 for the unpaid principalbalancesdue on two insurance policies: (1) $69,903.09 under policy L146001424-1, and (2) $23,238.00 under policy L146001424-2 (id at ¶ 3). The complaint asserts three causes of action. Breach of the insurance policies, unjust enrichment and an account stated. On or about June 29, 2018, Eastern interposed an answer in which it denied the material allegations in the complaint and asserted affirmative defenses, including: (1) Atlantic is unlicenced to issue insurance policies in New York and fails to allege licensing authority in another jurisdiction (secondaffirmative defense), and (2) Atlantic's incapacity to commence Amd maintain this action (sixth affirmative defense). Eastern also asserted a counterclaim alleging that it "request[s] reasonable attorney[']s fees in defending this action." Atlantic now moves for summary judgment seeking the sum of $93,141.04 that is allegedly due and owing on the two insurance policies that it issued to Eastern. In support of its motion, Atlantic submits the affidavit of Suzanne Parrish, its premium audit manager, 2 of 7 .. of 14 83 of 8 FILED: FILED : KINGS KINGS COUNTY COUNTY CLERK CLERK 08/28/2019 07/29/2019 04:03 09: 52 PM AM INDEX INDEX NO. NO. 510798/2018 510798/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 44 40 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/28/2019 07/29/2019 IF ILED K INGS COUNTY CLERK INDEX NO. 510798/2018 : 07 /15 / 2 0 191 NYSCEF DGC. NO. 39 RECEIVED NYSCEF: 07/23/2019 who explains that, pursuant to the terms of the insurance policies, premium audits were conducted revealing an increase in policy exposure, which resulted in increased premiums. According to Parrish, Eastern failed to pay the increased premiums, and consequently, policy L146001424-2 was cancelled. Notably, while Atlantic seeks to collect premiums based on the insurance policies, Atlantic fails to annex copies of those insurance policies to its moving papers. Eastern opposes Atlantic's summary judgment motion and cross-moves to dismiss the complaint. Eastern submits the affidavit of Asif Jhangir (Jhangir), its president, who attests that Eastern had a general liability insurance policy with Atlantic for six years and that Eastern paid an annual premium of approximately $7,000. However, in July 2017, Atlantic notified Jhangir that Eastern's policy was audited and its premiums would be increased. Eastern denies knowledge of Atlantic's rights under the insurance policy to conduct an audit and increase premiums, and asserts that Atlantic failed to specifically plead the terms of the policy or attach a copy of