This is an action to collect unpaid premiums brought by plaintiff Commissioners of the [*2]State Insurance Fund against its former insured, defendant D's Group Construction Corp. Plaintiff moves for summary judgment on its claim for unpaid premiums. In addition to opposing the summary-judgment motion, defendant moves for a protective order shielding its financial documents from disclosure should they be provided to plaintiff for an audit to determine premiums.

Plaintiff's motion is granted; defendant's motion is denied as academic.

Plaintiff is authorized under Workers' Compensation Law of New York State §76 to administer the affairs of the New York State Insurance Fund. The Fund provides workers' compensation insurance policies for employers and charges premiums calculated by rates set by the New York Compensation Insurance Rating Board.

Plaintiff issued defendant a workers'-compensation policy in 2015. In June 2017, plaintiff cancelled the policy due to defendant's asserted failure to pay its insurance premiums.

In the spring of 2018, plaintiff brought this action to collect on the premiums alleged to be due but unpaid. Defendant answered in August 2018.

In September 2018 plaintiff's counsel contacted defendant's counsel about scheduling an audit to determine the precise amount owed by defendant. In October 2018, defendant's counsel agreed that an audit should be conducted, and provided contact information for the appropriate person for plaintiff's auditors to contact. Plaintiff's counsel states in an affidavit that he requested that his Audit Department contact this person and schedule the audit. For reasons that do not appear in the record, the audit did not go forward at that time.

In October 2018, while waiting to hear back from defendant's counsel, plaintiff served a document demand for defendant's payroll and financial documents from January 20, 2015, to February 23, 2017, which would enable plaintiff to conduct the audit. Defendant did not produce the demanded documents.

A preliminary conference was held in March 2019. The PC order gave defendant until May 2019 to produce the demanded documents. Defendant did not do so. (Defendant claims that they did not receive plaintiff's document demands in October 2018; but it is undisputed that they received them at the March 2019 PC.)

A compliance conference was held in August 2019. The compliance-conference order gave defendants until October 2019 to produce the demanded financial documents. They did not do so. In late October 2019, a status conference was held. The status-conference order gave defendants an additional two months to produce the demanded documents. At the conference, defendant's counsel suggested that they would prefer to have a confidentiality agreement in place to shield defendant's financial documents from disclosure. Plaintiff's counsel indicated that he would be willing to review a draft confidentiality agreement if defendant's counsel would email it to him. Defendant did not do so. Nor did defendant provide the demanded documents by the deadline in the status-conference order.

In December 2019, plaintiff moved for summary judgment (motion sequence 001), returnable January 29, 2020. On the motion return date, defendant's counsel appeared in Room 130, provided plaintiff's counsel with a hard-copy draft of a confidentiality agreement, and obtained from the Room 130 referee an adjournment of the return date until March 4, 2020, because of the confidentiality issue. A few days later defendant's counsel emailed plaintiff's [*3]counsel a copy of the draft confidentiality agreement for discussion purposes. Plaintiff's counsel attempted multiple times to reach defendant's counsel by telephone to discuss the draft agreement, but defendant's counsel did not return his calls.

Defendant filed its opposition to summary judgment on March 3, 2020, one day before the return date. That same day defendant filed a motion for a protective order that would prevent third parties from being able to access or obtain defendant's business documents (motion sequence 002). The filing of the motion for a protective order stayed this court's adjudication of the motion for summary judgment. Briefing on the motion for protective order, though delayed by COVID-19, has now been completed.

Motion sequences 001 and 002 are consolidated here for disposition.

A party moving for summary judgment under CPLR 3212 "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of a material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) If the movant makes that prima facie showing, the burden shifts to the non-movant to produce sufficient evidentiary proof to raise material issues of fact requiring a trial. (See Alvarez, 68 NY2d at 324.)

Plaintiff contends that it has submitted sufficient evidence to establish its prima facie entitlement to judgment as a matter of law. This court agrees. Plaintiff has submitted a copy of the insurance application and policy, statements of account and invoices, and audit worksheets. (See NYSCEF No. 17 [affidavit describing plaintiff's documentation in support of the motion]; NYSCEF Nos. 19-26 [documentation].) That suffices to make out a prima facie case at summary judgment. (See Commissioners of the State Ins. Fund v Titanium Interiors, Inc., 180 AD3d 563, 563 [1st Dept 2020] [reversing denial of summary judgment]; Commissioners of the State Ins. Fund v. Allou Distribs., 220 AD2d 217, 217 [1st Dept 1995] [affirming grant of summary judgment].)

In opposition, defendant contends that plaintiff's premium calculations are inaccurate, and that some of plaintiff's decisions on how to classify defendant's employees for insurance purposes (and thus premium purposes) are inaccurate. (See NYSCEF No. 37 at 4.) But defendant has not provided any details regarding these alleged errors or provided evidence that might support its contention that plaintiff erred. This minimal showing is not enough to create an issue of fact requiring trial. (See Titanium Interiors, 180 AD3d at 563; Allou Distributors, 220 AD2d at 217.^[FN1] ) Defendant also asserts that it is willing to provide its financial records for an audit, and that granting summary judgment prior to an audit being conducted would be premature. (NYSCEF No. 37 at 4.) But plaintiff's counsel's affidavit describing the interactions between the attorneys in this case—which defendant does not dispute—indicate that the breakdown in the process of getting the audit conducted was ultimately on defendant's end, not plaintiff's. (See [*4]NYSCEF No. 46 at ¶¶ 16-23.) On this record, the absence of an audit is not a basis to deny plaintiff's motion for summary judgment.

In addition to the principal amount of unpaid premiums sought, plaintiff is also entitled to statutory interest running from the date it cancelled defendant's policy. (See Titanium Interiors, 180 AD3d at 563.) Plaintiff represents—and defendant does not dispute—that the cancellation date here was June 20, 2017. (See NYSCEF No. 18 at ¶ 19.)

Finally, given this court's conclusion that plaintiff is entitled to summary judgment, defendant's motion for a protective order is academic.

Accordingly, it is hereby

ORDERED that plaintiff's motion for summary judgment under CPLR 3212 (mot seq 001) is granted, and plaintiff is awarded a judgment in the amount of $89,032.88, plus interest running at the statutory rate from June 20, 2017; and it is further

ORDERED that defendant's motion for a protective order under CPLR 3103 (mot seq 002) is denied as academic; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendant; on the office of the General Clerk; and on the office of the County Clerk, which shall enter judgment accordingly.