Geico Indem. v. Roth
(4th Dept., decided 11/14/2008)
Based on a prior policy cancellation, Geico commenced this action for a declaration that it was not obligated to defend or indemnify defendant Scott Mayer in an underlying personal injury action. In an attemp to create a question of fact to preclude summary judgment from being granted to Geico, Mayer claimed that he did not recall having received Geico's cancellation notice.
In REVERSING Niagara County Supreme's denial of Geico's summary judgment motion, the Fourth Department held:
"It is well established that a notice of cancellation is ineffective unless in strict compliance with the requirements of Vehicle and Traffic Law § 313 (1) (a)" (Barile v Kavanaugh, 67 NY2d 392, 399), and plaintiff met its initial burden by demonstrating its strict compliance with the statute, i.e., plaintiff demonstrated that it timely and validly cancelled the policy issued to Mayer based on his nonpayment of premiums (see generally § 313 [1] [a]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229; Matter of State Farm Mut. Auto. Ins. Co. v Morales, 207 AD2d 546; Matter of State Farm Mut. Auto. Ins. Co. v Cherian, 202 AD2d 434, 435). The burden then shifted to defendants-respondents (defendants) "to establish noncompliance with [Vehicle and Traffic Law § 313 (1) (a)] as to form and procedure' " (Cherian, 202 AD2d at 435, quoting Berrios v Lumbermens Mut. Cas. Co., 162 AD2d 365), and defendants failed to meet that burden. Plaintiff submitted "evidence of its office mailing practice sufficient to establish that the notice of cancellation had been mailed and presumably received" (Badio, 12 AD3d at 230). The deposition testimony of Mayer that he did not recall receiving the notice is insufficient to rebut the presumption of receipt (see id. at 231).
4 comments:
Would it have made a difference if he flat out denied receiving it? What if he denied it and said that he was the only person who receives the mail in the household?
That would be too easy. Citing a 2004 First Department decision, which cited the 1978 Court of Appeals decision, the Third Department recently stated that "[p]laintiff's testimony that he never received the final notice is, without more, insufficient to rebut the presumption of receipt." Kaufmann v. Leatherstocking Coop. Ins. Co.
In the Court of Appeals case, Nassau Ins. Co. v. Murray , 46 N.Y.2d 828, the court stated:
Denial of receipt by the [*830] insureds, standing alone, is insufficient to rebut the presumption. In addition to a claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed[.]
what about the 313 mailing presumption
I don't follow. Do you mean the presumption of receipt discussed in Nassau Ins. Co. v. Murray? Is there a presumption of mailing that I've missed all these years?
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