increase two days later, but the parties dispute whether
defendant made any complaint concerning the over-reserved claim.
Christofides submits in his affidavit that on July 13-14,
1998, he was able to negotiate a settlement figure of $260,000
and recommended such settlement to plaintiff. (Christofides Aff.
¶¶ 11-12.) Defendant alleges that it did not receive any phone
calls, correspondence, or other communication concerning
settlement negotiations or its consent. Defendant asserts that
its next communication with plaintiff did not occur until it
received a letter from JHCB dated July 14, 1998, informing it of
the settlement that had occurred the previous day. (Mirabelli
Aff. ¶¶ 19-20.)
I. Summary Judgment Standard
Defendant moves for summary judgment pursuant to FED. R. CIV.
P. 56(b). Summary judgment may be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c). The moving party has the initial burden of demonstrating
the absence of any genuine issues of material fact. See
Weinstock v. Columbia University, 224 F.3d 33, 40 (2d Cir.
2000). The burden then switches to the non-movant who must
demonstrate that genuine issues of material fact exist. See
id. In deciding whether summary judgment is appropriate, the
court must resolves all ambiguities and draw all reasonable
inferences in favor of the non-movant. See Schwapp v. Town of
Avon, 118 F.3d 106, 110 (2d Cir. 1997). The court's role at
this stage of the litigation is not to decide genuine issues of
material fact, but to determine whether the record, in its
entirety, presents any genuine issues for trial. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511,
91 L.Ed.2d 202 (1986). Summary judgment may not be granted simply
because the court believes the plaintiff will not be able to
meet his burden of persuasion at trial. See Danzer v. Norden
Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998). II. Liability on
A. Prima Facie Showing of Liability on Insurance
An insurer establishes a prima facie case of liability for
insurance premiums on an audited policy by offering evidence:
(1) showing that the policy was issued to the insured; and (2)
illustrating the computation of the earned premium established
through an audit of the insured's books and records after the
expiration of the policy period. See Liberty Mutual Ins. Co. v.
Star Indus. Inc., No. 96CV-0644, 1997 WL 1068692, at *3
(E.D.N.Y. Oct. 10, 1997); Liberty Mutual Ins. Co. v. Kings
Nissan, Inc., No. 93-CV3560, slip op. at *8 (E.D.N.Y. April 21,
1994) (citing Family Coatings, Inc. v. Michigan Mutual Ins.
Co., 170 A.D.2d 816, 566 N.Y.S.2d 106 (App.Div.3d Dep't 1991)).
See also Safeguard Ins. Co. v. E. Tetz & Sons, Inc.,