Dorset v. 285 Madison Owner LLC

Summary

The Appellate Division, First Department affirmed the denial of summary judgment sought by defendants on contractual defense and indemnification claims and a failure-to-procure-insurance claim. The court held that key contracts and deposition testimony were not properly authenticated or were improperly submitted in reply papers. It also concluded that the insurer’s agreement to participate in prorated defense-cost sharing undermined defendants’ prima facie showing on the insurance claim.

Holdings

1. A party seeking summary judgment must support its prima facie showing with admissible evidence, and contract documents cannot be authenticated through deposition testimony when the witness was not shown the documents, did not identify them as the documents reviewed, or did not testify about the relevant contract terms.
2. A movant may not rely on evidence submitted for the first time in reply to establish its 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.

Questions Presented

1. Whether defendants established prima facie entitlement to summary judgment on their contractual defense and indemnification claims through admissible, authenticated contract documents.
2. Whether documents submitted for the first time in reply or authenticated through deposition testimony concerning documents not shown to the witness could support defendants' prima facie showing.
3. Whether defendants established prima facie entitlement to summary judgment on their claim that Penava failed to procure insurance.

Disposition

affirmed