Opinion
452772/2017
08-13-2018
COMMISSIONERS OF the STATE INSURANCE FUND, Plaintiff, v. UNCLE JACK'S STEAKHOUSE INC., Defendant.
Michael D. Totaro, NEW YORK STATE INSURANCE FUND, 199 CHURCH ST., NEW YORK, NY 10007 Robert Joseph Cecere, C/O DANIELS, NORELLI CECERE & TAVEL, 272 DUFFY AVE., HICKSVILLE, NY 11801
Michael D. Totaro, NEW YORK STATE INSURANCE FUND, 199 CHURCH ST., NEW YORK, NY 10007
Robert Joseph Cecere, C/O DANIELS, NORELLI CECERE & TAVEL, 272 DUFFY AVE., HICKSVILLE, NY 11801
Carmen Victoria St. George, J.
The following papers were read on this motion for
PAPERS NUMBERED
Notice of Motion /Order to Show Cause — Affidavits — Exhibits 1-19
Answering Affidavits — Exhibits 22-23
Plaintiff seeks summary judgment in this action to recover $167,427.19 in worker's compensation insurance premiums. Plaintiff argues judgment is appropriate on an account stated theory because defendant did not challenge the bills that were sent to him, and that summary judgment is proper on defendant's breach of contract claim as well. Plaintiff submits, inter alia, a printout of the statement of account and copies of two years of audit worksheets which only list defendant's president as a payroll recipient.
Defendant states in opposition that plaintiff has not submitted evidence that defendant received the statements of account, and therefore summary judgment on an account stated theory must be denied. Defendant contends it vigorously objected to plaintiff's premium claim upon receipt. Defendant argues that plaintiff improperly classified Uncle Jack's employees, resulting in an overcharge. Defendant argues this motion is premature as there has been no discovery. The documents annexed to the motion, defendant argues, are insufficiently detailed for the company to evaluate the purported debt and insufficient to establish the debt. There is no reply by plaintiff.
After careful consideration, the Court grants summary judgment on liability on the breach of contract argument, and it refers the issue of damages to a referee for determination. Defendant has sufficiently raised an issue of fact as to whether an account stated existed but has not done so regarding its breach of contract. The material plaintiff submits in support is sufficient to demonstrate its entitlement to relief (see Commissioners of the State Ins. Fund v. Beyer Farms , 15 AD3d 273, 274 [1st Dept.], leave denied , 5 NY3d 707 [2005] ). The fact that the debt exists is supported by the fact that defendant has made and allegedly continues to make payments on the account. Defendant's challenge to the classification of its employees is not appropriate for judicial consideration but instead should have been challenged administratively within one year of the audits in question (see Commissioners of the State Ins. Fund v. Ramer , 100 AD3d 507, 508 [1st Dept. 2012] [finding that trial court's denial of plaintiff's motion as premature was improper] ). Defendant's challenges to the evidence and its statement that it has made further payments, however, show that judgment for a sum certain is premature. The parties should set up a timetable for the exchange of discovery and file for an inquest as to damages.
Upon the foregoing papers, therefore, it is
ORDERED that the motion is granted on the issue of liability; and it is further
ORDERED that within 30 days from the date of this order, plaintiff shall serve a copy of this order with notice of entry, with a completed Special Referee Information Sheet, upon the Special Referee Clerk in the Motion Support Office to arrange a date for the reference to a Special Referee; and it is further
ORDERED that, prior to the hearing, the Referee shall set forth an expedited timetable for the exchange of all necessary discovery.