Preview
FILED: KINGS COUNTY CLERK 09/25/2018 08:57 AM INDEX NO. 510798/2018
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/25/2018
STATE OF NEW YORK
SUPREME COURT COUNTY OF KINGS
_________-----________________________
ATLA.NTIC CASUALTY INSURANCE Index No.: 510798/2018
COMPANY,
Plaintiff,
-against-
AFFIDAVIT
EASTERN FRUIT & VEGETABLES, INC.,
Defendant.
-------___________------------------
STATE OF Norho b rve )
COUNTY OF A C ) SS:
WGA/
dh 66 d ff 5%Ô , being duly swom, deposes and states that I am the
b¶l A W e Plaintiff in the above-entitled action and as such I am fully
familiar with allof the facts and circumstances herein.
OVERVIEW
1) This affidavit is submitted in support of Plaintiff's motion for summary
judgment pursuant to CPLR 3212.
2) This is an action for breach of contract for insurance coverage provided by the
Plaintiff to the Defendant, at the Defendant's specific request.
FOUNDATION
3) I am over the age of 18 and fully competent to make this affidavit. The facts
stated herein are true and correct and are based on my personal knowledge.
4) I am the custodian of the records of the Plaintiff.
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FILED: KINGS COUNTY CLERK 09/25/2018 08:57 AM INDEX NO. 510798/2018
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/25/2018
5) Exact duplicates of Plaintiff's business records, regarding the account of the
Defendant, are attached within and are the basis of thislawsuit.
6) These records are made, kept and maintained in the regular course of Plaintiff's
business.
7) It is the regular practice of the Plaintiff or an employee or representative with
knowledge of the transaction, to generate an invoice, make and keep a copy for
Plaintiff's records, and to mail a copy of the invoice to the party receiving the benefit
of Plaintiff's services, in thiscase, the Defendant.
8) Plaintiff's records are made at or near the time of occurrence of the matters set
forth in the preceding paragraph, by, or from information transmitted by, a person in
Plaintiff's employ with knowledge of those matters.
BACKGROUND
9) Atlantic Casualty Insurance Company (hereinafter, the "Plaintiff") issued a
policy of Commercial General Liability Insurance to Eastern Fruit & Vegetables, Inc.
(hereinafter, the "Defendant") under Policy Number L146001424-1 for the effective
dates of April 17, 2016 to April 17, 2017.
10) At the end of the policy period, an annual audit was conducted which revealed
additional exposure to the Plaintiff. A copy of the Audit Summary is annexed hereto
as Exhibit "A". The outstanding balance due under said policy is $69,903.09. A copy
of the audit endorsement is annexed hereto as Exhibit "B".
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FILED: KINGS COUNTY CLERK 09/25/2018 08:57 AM INDEX NO. 510798/2018
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/25/2018
11) The Policy was renewed under number L146001424-2 for the effective dates of
April 17, 2017 to April 17, 2018. The policy was canceled on October 3, 2017 due to
non-payment. The outstanding balance due under said policy is $23,238.00 as more
particularly described in the policy endorsements annexed hereto as Exhibit "C".
12) Defendant has failed and refused to remit payment of $93,141.09 owed to
Plaintiff pursuant to the terms of the aforementioned policies.
13) Defendant has breached the insurance contract between the parties by itsfailure
to remit payment of the audit premiums which Defendant owes to Plaintiffs.
14) As a result of Defendant's breach of the insurance contract, Plaintiffs have
suffered damages in the amount of $93,141.09.
PROCEDURAL HISTORY
15) This action was commenced by the filing of a Summons and Complaint with the
Kings County Clerk's Office on May 24, 2018. Defendant appeared by interposing an
Answer dated June 29, 2018 (see Exhibit "D", All pleadings).
16) Defendant Eastern Fruit & Vegetables, Inc. was duly served on June 5, 2018. (see
Exhibit "E", Affidavit of Service).
PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT
17) Plaintiff fully performed its contractual obligation by providing insurance
coverage to Defendant and is entitled to payment for same.
18) Defendant breached its agreement with Plaintiff by failing to pay for the
coverage in a timely manner.
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FILED: KINGS COUNTY CLERK 09/25/2018 08:57 AM INDEX NO. 510798/2018
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/25/2018
19) Furthermore, at no point has Defendant ever denied receiving services frorn
Plaintiff, or objected to the quality of the services provided.
20) I have reviewed Defendant's account history, including all invoices, statement,
payments and credits, and the outstanding principal amount of $93,141.09 is true and
accurate to the best of my knowledge.
21) Defendant's Answer consists of affirmative defenses which are pled in a
conclusory manner and fails to raise any meritorious defense which would preclude
Plaintiff's right to judgment as a matter of law.
CQNCLUSION
22) Your deponent believes that there is no defense to this action and that the
Answer interposed on behalf of Defendant was interposed merely for delay and that,
in fact, Defendant has no meritorious defense to Plaintiff'sComplaint.
WHEREFORE, Plaintiff respectfully requests an Order of this Court granting
summary judgment in favor of Plaintiff and against Defendant in the principal sum of
$93,141.09, together with costs, statutory interest of 9%, and disbursements, and for
such other and further relief as to this Court seems just and proper.
ATLANTIC CASUALTY INSURANCE COMPANY
BY: /hM . [{
Name: b Lhn n Y 5 h
Title: 6fn IthW fÚdV Ÿ Ît #
8)L11h a
Sworn to before me this day
NmARY PUBLIC
of 5£pt, 5 , 2018
WAYNECO.
MYCOMM,EXP
Notary PubÙc 3 3 R3
4 of 4
Preview
FILED: KINGS COUNTY CLERK 09/25/2018 08:57 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/25/2018 STATE OF NEW YORK SUPREME COURT COUNTY OF KINGS _________-----________________________ ATLA.NTIC CASUALTY INSURANCE Index No.: 510798/2018 COMPANY, Plaintiff, -against- AFFIDAVIT EASTERN FRUIT & VEGETABLES, INC., Defendant. -------___________------------------ STATE OF Norho b rve ) COUNTY OF A C ) SS: WGA/ dh 66 d ff 5%Ô , being duly swom, deposes and states that I am the b¶l A W e Plaintiff in the above-entitled action and as such I am fully familiar with allof the facts and circumstances herein. OVERVIEW 1) This affidavit is submitted in support of Plaintiff's motion for summary judgment pursuant to CPLR 3212. 2) This is an action for breach of contract for insurance coverage provided by the Plaintiff to the Defendant, at the Defendant's specific request. FOUNDATION 3) I am over the age of 18 and fully competent to make this affidavit. The facts stated herein are true and correct and are based on my personal knowledge. 4) I am the custodian of the records of the Plaintiff. 1 of 4 FILED: KINGS COUNTY CLERK 09/25/2018 08:57 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/25/2018 5) Exact duplicates of Plaintiff's business records, regarding the account of the Defendant, are attached within and are the basis of thislawsuit. 6) These records are made, kept and maintained in the regular course of Plaintiff's business. 7) It is the regular practice of the Plaintiff or an employee or representative with knowledge of the transaction, to generate an invoice, make and keep a copy for Plaintiff's records, and to mail a copy of the invoice to the party receiving the benefit of Plaintiff's services, in thiscase, the Defendant. 8) Plaintiff's records are made at or near the time of occurrence of the matters set forth in the preceding paragraph, by, or from information transmitted by, a person in Plaintiff's employ with knowledge of those matters. BACKGROUND 9) Atlantic Casualty Insurance Company (hereinafter, the "Plaintiff") issued a policy of Commercial General Liability Insurance to Eastern Fruit & Vegetables, Inc. (hereinafter, the "Defendant") under Policy Number L146001424-1 for the effective dates of April 17, 2016 to April 17, 2017. 10) At the end of the policy period, an annual audit was conducted which revealed additional exposure to the Plaintiff. A copy of the Audit Summary is annexed hereto as Exhibit "A". The outstanding balance due under said policy is $69,903.09. A copy of the audit endorsement is annexed hereto as Exhibit "B". 2 of 4 FILED: KINGS COUNTY CLERK 09/25/2018 08:57 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/25/2018 11) The Policy was renewed under number L146001424-2 for the effective dates of April 17, 2017 to April 17, 2018. The policy was canceled on October 3, 2017 due to non-payment. The outstanding balance due under said policy is $23,238.00 as more particularly described in the policy endorsements annexed hereto as Exhibit "C". 12) Defendant has failed and refused to remit payment of $93,141.09 owed to Plaintiff pursuant to the terms of the aforementioned policies. 13) Defendant has breached the insurance contract between the parties by itsfailure to remit payment of the audit premiums which Defendant owes to Plaintiffs. 14) As a result of Defendant's breach of the insurance contract, Plaintiffs have suffered damages in the amount of $93,141.09. PROCEDURAL HISTORY 15) This action was commenced by the filing of a Summons and Complaint with the Kings County Clerk's Office on May 24, 2018. Defendant appeared by interposing an Answer dated June 29, 2018 (see Exhibit "D", All pleadings). 16) Defendant Eastern Fruit & Vegetables, Inc. was duly served on June 5, 2018. (see Exhibit "E", Affidavit of Service). PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT 17) Plaintiff fully performed its contractual obligation by providing insurance coverage to Defendant and is entitled to payment for same. 18) Defendant breached its agreement with Plaintiff by failing to pay for the coverage in a timely manner. 3 of 4 FILED: KINGS COUNTY CLERK 09/25/2018 08:57 AM INDEX NO. 510798/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/25/2018 19) Furthermore, at no point has Defendant ever denied receiving services frorn Plaintiff, or objected to the quality of the services provided. 20) I have reviewed Defendant's account history, including all invoices, statement, payments and credits, and the outstanding principal amount of $93,141.09 is true and accurate to the best of my knowledge. 21) Defendant's Answer consists of affirmative defenses which are pled in a conclusory manner and fails to raise any meritorious defense which would preclude Plaintiff's right to judgment as a matter of law. CQNCLUSION 22) Your deponent believes that there is no defense to this action and that the Answer interposed on behalf of Defendant was interposed merely for delay and that, in fact, Defendant has no meritorious defense to Plaintiff'sComplaint. WHEREFORE, Plaintiff respectfully requests an Order of this Court granting summary judgment in favor of Plaintiff and against Defendant in the principal sum of $93,141.09, together with costs, statutory interest of 9%, and disbursements, and for such other and further relief as to this Court seems just and proper. ATLANTIC CASUALTY INSURANCE COMPANY BY: /hM . [{ Name: b Lhn n Y 5 h Title: 6fn IthW fÚdV Ÿ Ît # 8)L11h a Sworn to before me this day NmARY PUBLIC of 5£pt, 5 , 2018 WAYNECO. MYCOMM,EXP Notary PubÙc 3 3 R3 4 of 4