Investors Special Risk Insurance v. Smith

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs motion and defendants’ cross motion for summary judgment. The proof fails to establish, as a matter of law, whether defendants are liable to pay past-due premiums on the policies issued by plaintiff (cf., Home Indem. Co. v Castel Constr., 128 Misc 2d 1026). Further, defendants did not meet their burden of demonstrating that *991plaintiff lacks capacity to maintain this action because of Business Corporation Law § 1312 (a) (see, Interline Furniture v Hodor Indus. Corp., 140 AD2d 307; Alicanto, S. A. v…