Dorset v. 285 Madison Owner LLC

Summary

The Appellate Division, First Department unanimously affirmed an order denying defendants' motion for summary judgment on contractual defense and indemnification and failure-to-procure-insurance claims against Penava Mechanical Corp. The court held that defendants failed to authenticate several contracts and improperly relied on evidence submitted for the first time in reply papers. It also held that the evidence concerning insurance coverage undermined defendants' prima facie showing on the failure-to-procure claim.

Holdings

1. A party moving for summary judgment must establish its prima facie entitlement through evidence tendered in admissible form, and documents cannot be authenticated through deposition testimony when the witness was not shown or asked about the documents or their relevant terms and the documents lack an identifying exhibit marker.
2. A movant may not rely on deposition testimony submitted for the first time in opposition to the movant's moving papers to establish the movant's prima facie entitlement to summary judgment.
3. A party moving for summary judgment on a failure-to-procure-insurance claim must establish that a contract provision required procurement of insurance and that the provision was not complied with; an insurer's agreement to participate in prorated defense-cost sharing may undermine that prima facie showing even if the insurer reserves rights to disclaim a future duty to indemnify.

Questions Presented

1. Whether defendants established a prima facie entitlement to summary judgment on their contractual defense and indemnification claims using admissible, authenticated documents.
2. Whether deposition testimony submitted for the first time in opposition to defendants' moving papers could be used by defendants to establish their prima facie entitlement to summary judgment.
3. Whether defendants established a prima facie entitlement to summary judgment on their claim that Penava failed to procure insurance.

Disposition

affirmed