NAB Construction Corp. v. Great American Insurance

— Judgment, Supreme Court, New York County, entered November 22, 1978, denying plaintiffs’ motion for summary judgment and granting defendant’s cross motion for summary judgment, affirmed, with costs. Of the various points raised by plaintiffs, the only one worthy of discussion is whether the defendant was justified in canceling the comprehensive general liability insurance policy issued to plaintiffs for nonpayment of premiums. To answer this question, it is unnecessary to consider, as plaintiffs concede, whether National acted as plaintiffs’ broker or defendant’s agent. Likewise, there is no need to reach the issue of whether the plaintiffs were financially responsible for defaults in premium payments due on certain policies issued to the subcontractors on the subject project. Defendant’s accounts receivable superintendent has submitted an affidavit and a "spread sheet” tending to prove that the plaintiffs owed $18,769 in premium payments when the notice of cancellation was mailed. In opposition thereto, plaintiff’s principal states: "That at the time of such cancellation, plaintiffs had duly paid all premiums relative to such policy of insurance in accordance with the terms of payment contained in such policy.” A party opposing a motion for summary judgment must lay bare its proof so that the court can determine whether a trial is warranted (Path-mark Graphics v J. M. Fields, Inc. 53 AD2d 531, app dsmd 40 NY2d 1093). In this proceeding, the plaintiffs had the continuing burden of establishing that payment had been made (44 NY Jur, Payment, § 155, p 125). Thus, at Special Term, plaintiffs could have prevailed upon its motion for summary judgment and could have defeated defendant’s cross motion for that same 560 relief by simply submitting a copy of a check or a receipt evidencing the payment of premiums up to and including January of 1977. Instead, the plaintiff failed to submit any documentary evidence to support its claim of payment. Furthermore, it did not even make an attempt to delineate the time and manner in which payment was allegedly effected. Consequently, the defendant’s cross motion for summary judgment was properly granted for plaintiffs’ failure to show any substance to its bare claim of payment. A passing comment should be made about the defendant’s statement of premium adjustment dated June 9, 1977. Plaintiffs maintain that this statement indicates that it had paid excess premiums as of February 21, 1977, the date of cancellation. Even though plaintiffs might have been entitled to a pro rata refund after proper cancellation of the policy, the fact remained that it had defaulted in premium payments at the time the policy was canceled. Concur—Murphy, P. J., Lane and Lupiano, JJ.