Commissioners of the State Ins. Fund v BDM Solutions LLC

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Commissioners of the State Ins. Fund v BDM Solutions LLC 2020 NY Slip Op 33552(U) October 26, 2020 Supreme Court, New York County Docket Number: 451847/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/27/2020 03:19 PM INDEX NO. 451847/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/27/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART lAS MOTION 59EFM Justice ----------------------------------------------------------------------------COMMISSIONERS X INDEX NO. OF THE STATE INSURANCE FUND, 451847/2018 MOTION DATE 02/25/2020 Plaintiff, MOTION SEQ. NO. 001 - v8DM SOLUTIONS DECISION + ORDER ON MOTION LLC, Defendant. ------------------------------------------------------------------------The following e-filed documents, 13,14,15,16,17,18,19,20,21,22,23 X listed by NYSCEF document number (Motion 001) 7,8,9,10,11,12, ..24, 25, 26, 27, 28, 29, 31 . were read on this motion to/for JUDGMENT - SUMMARY ORDER Upon the foregoing ORDERED is denied; order(s) that the motion it is of plaintiff for summary judgment and it is further ORDERED conference documents, that counsel shall submit a proposed order or competing proposed to 59nyef@nycourts.gov preliminary preliminary and NYSCEF conference on or before November 30,2020. DECISION Plaintiff, moves, pursuant of $86,816.61, defendant, insurance 451847/2018 Commissioners of the State Insurance to CPLR 3212, for summary representing BDM Solutions coverage COMMISSIONERS Motion No. 001 LLC premiums the alleged judgment balance (BDM), for workers' (Policy Number OF THE STATE VS. 80M SOLUTIONS 1 of 6 LLC Fund (SIF), in the amount due from compensation 23478209). Page 1 of 6 [*FILED: 2] NEW YORK COUNTY CLERK 10/27/2020 03:19 PM INDEX NO. 451847/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/27/2020 There workers' is no d~spute compensation renewals, spanned when the policy the balance statement charging alleges compensation 23, 2017, 80M $86,816.61, through dispute insurance on classifications as a billing complaint some workers premium. 80M contends of certain 80M workers in a carpentry classification 80M's answer 80M in excess of that on an erroneously and to the complaint that SIF acted in bad faith in changing changing are for is SIF's calculation those classifications, 80M a higher premium. knowingly with stated. of the parties' after the audit, billing charges SIF billed for coverage, and account but then changed classifying coverage, 13, 2014 to November of action of Plaintiff's of contract SIF had ~greed The policy's to 80M for to 80M on or near June 13, 2018. The essence audit, from November for premiums mailed 80M workers' insurance. was cancelled. The causes breach that SIF issued a policy of those audit findings findings, the result of the audit to increase and the (NYSCEF Doc. No.6). Generally, application, statements entitlement "evidence the policy, consisting the audit reports [areJ sufficient to judgment 451847/2018 COMMISSIONERS Motion No. 001 Messenger However, and the resulting to make out a prima as a matter State Ins. Fund v Concord [1st Dept 2006J). of the insurance of law" Serv., (Commissioners Inc., 34 A03d it "is well settled OF THE STATE vs. 80M SOLUTIONS 2 of 6 LLC facie showing that of 355 [tJhe Page 2 of 6 of [*FILED: 3] NEW YORK COUNTY CLERK 10/27/2020 03:19 PM INDEX NO. 451847/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/27/2020 proponent showing of a summary judgment of entitlement motion must make a prima to judgment as a matter facie of law, t~ndering ( sufficient evidence from the case 853)" to eliminate [1st Dept 2000] v Cornell is that "[r]egardless papers, in the absence preclude any material unavailable" maintain as 80M, and create contemporaneously due November judgment 68 NY2d 320, 324 on this motion, of its documents, (NYSCEF Doc. No.8), to is [1993], [1986] and to SIF submits "Auditor Worksheets" in time, or shortly worksheets, submitted for SIF's final charges 13, 2016 to November were prepared 451847/2018 COMMISSIONERS Motion No. 001 the who avers that a log of audits of SIF's assureds, such (auditor worksheets) after an audit (NYSCEF Doc. No. 8, ~ 21). for that period well sufficient which are then used by SIF to determine that auditor the basis burden the admissibility of Arif Malik completed, 114, 117 of the opposing 81 NY2d 1062, 1063 HOsp., 851, omitted]). its moving SIF's auditors 64 NY2d Equally evidence issue of ,fact, summary v Prospect [quota~ion marks payments of admissible of fact 269 AD2d of the sufficiency (Ayotte v Gervasio, quoting Alvarez affidavit Univ. Med. ColI., [quotation marks omitted]). settled demonstrate issues (Winegrad v New York Univ. Med. Ctr., (Finkelstein To meet any material Malik is premium further avers here by SIF in moving, concerning the per~od form from 13, 2017, and that the worksheets based upon an actual OF THE STATE VS. 8DM SOLUTIONS 3 of 6 LLC audit Page 3 of 6 [*FILED: 4] NEW YORK COUNTY CLERK 10/27/2020 03:19 PM INDEX NO. 451847/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/27/2020 conducted at 80M's accountant's office on February 28, 2018 (NYSCEF Doc. No. 8, ~~ 26-27). An examination supplemental performed directly of those audit worksheets report which states that a partial in December address 2017. the issue of SIF's assignment categories for 80M's workers at 22 of 22). As to report's of SIF's assertions from them, must be viewed (Matter of Eighth contents, therein, Litig., eliminate fact issues about the parties' SIF relies from the auditor, $47,637.66, workers, billed for a different NYSCEF Doc. No. 25 at 14 of 17). 451847/2018 COMMISSIONERS Motion No. 001 workers party, or otherwise as classification OF THE STATE vs. BDMSOLUTIONS is no affidavit explaining the addressing its why 80M was credited for in February 4 of 6 488, 496 or show that contain knowledgeable "report, party with the bill, of certain SIF also does not address concerning drawn does not dispute SIF's submissions or another the SIF query concerning classification of the supplemental contents. judgment, 33 NY3d the report is consistent to be an internal Furthermore, correct. meaning in that manner, the auditor's (NYSCEF Doc. No 16 in favor of 80M, the non-moving When viewed whether of worker on summary [2019J). the report appears to and any inferences Jud. Dist. Asbestos the audit upon which a audit was This report also appears classification meaning reveals 2018, but then at a higher LLC amount (see Page 4 of6 [*FILED: 5] NEW YORK COUNTY CLERK 10/27/2020 03:19 PM NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/27/2020 Thus, on this record, SIr has not met its burden demonstrate that the premiums owed, which is at the heart of'this Insurance Co. Inc. v Certified 677, 687 [1st Dept 2011] evidence submitted were correctly dispute Moving Mutual. (see ~, Dept 2006] did not sufficiently address the account instrument 2005], stated dispute]; affd as mod 31 AD3d premiums with the appropriate claim, to create classification 352, 352 [1st to establish were accurate rating plan]). such a claim "cannot llability Atlantic Inc., 2005 NY Slip Op 30391[U] of retrospective in accordance Seneca & Stor. Co, LLC, 82 AD3d [insurer failed to submit evidence the calculations and [prima facie case not met where Ins. Co. v Joyce Intern., [Sup Ct, NY County to calculated issue which was at the heart of the parties' made INDEX NO. 451847/2018 that and As to be made the when none exists" (see Gurney, '., Becker & Bourne, 995, 996 Inc. v Benderson results sufficiency 106 AD3d Chiller a movant's failure to make in the denial of the opposing 524, 525 Maintenance [where movant papers Corp., facie regardless of the (Corprew v City of New York, [1st Dept 2013]; TrizecHahn, 92 AD3d 409, 410 failed to demonstrate COMMISSIONERS Motion No. 001 its prima of the motion, issues of fact" denial warranted 451847/2018 Co., Inc., 47 NY2d [1979]). In summary, showing Development Inc. v Timbil [1st Dept 2012] "the~absence "regardless of 6 OF THE STATE VS. 80M5 SOLUTIONS LLC of triable of the sufficiency Page 5 of 6 [*FILED: 6] NEW YORK COUNTY CLERK 10/27/2020 03:19 PM NYSCEF DOC. NO. 33 INDEX NO. 451847/2018 RECEIVED NYSCEF: 10/27/2020 papersU) of the opposing Consequently, • the motion must be denied. In reply, not within SIF argues this court's that questions jurisdiction review by the New York Compensation a general courtU 195 AD2d 372, 375 as to whether correct, all material of State Ins. Fund v Fox Run Farms, [1st Dept 1993]). However, burden 2018 appeal record by the Rating letter BDM to the Rating concerning evidence, in response eliminate and Moreover, or to the December the classification in 17, issue sent by Board. CASE DISPOSED GRANTED SETTLE ~ to that it is owed, to judgment. DATE CHECK IF APPROPRIATE: are not sufficient ~,( c.~ At DE Ri(A APPLICATION: This court case. its calculation 10/26/2020 CHECK ONE: Inc., is an actual determination, Board, in no determination that it claims its entitlement from the motion dismissal, to, with admissible of the premiums As rate is actually only that SIF's submissions order to demonstrate Board. may not be contested issues of fact concerning determination are administrative Rating or not, has been made in the instant its moving absent Insurance or not any classification has determined meet but require rule, "a rate classification (Commissioners of classification NON.FINAL 0 GRANTED DENIED TRANSFER/REASSIGN DISPOSITION IN PART SUBMIT ORDER ORDER INCLUDES 1:-44:->. , FIDUCIARY ~ ~-1 JAMES, J.S.C. APPOINTMENT D D OTHER REFERENCE Page 6 of6 451847/2018 COMMISSIONERS Motion No. 001 OF THE STATE vs. 80M SOLUTIONS 6 of 6 LLC

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