Blog

Mailing from the Court of Appeals – kind of importantApril 3, 2014

Preferred Mut. Ins. Co. v Donnelly, 2014 NY Slip Op 02328 (2014)

I am going to say that this is a much less restrictive test than what was set up in the 1979 decision of Nassau v. Murray.  The pertinent portion of the Fourth Department case that was affirmed is cited below.  Does your mailing affidavit hit these key points?

“The Appellate Division correctly determined that the plaintiff-insurer presented sufficient evidence of a regular office practice to ensure the proper mailing of notifications to insureds so as to raise the presumption that such a notification was mailed to and received by the insured. Specifically, the plaintiff-insurer submitted an affidavit from an employee who had personal knowledge of the practices utilized by the insurer at the time of the alleged mailing to ensure the accuracy of addresses, as well as office procedures relating to the delivery of mail to the post office. Thus, the plaintiff-insurer provided proper notice of the amendment to the policy upon renewal adding the relevant exclusion. Defendant’s remaining contentions are without merit. ”

This was what was affirmed at 111 AD3d 1242 (4th Dept. 2013):

“Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing.  The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot.

While we agree with the dissent that there was no evidence submitted of a practice to ensure that the number of envelopes delivered to the mail room corresponded to the number of envelopes delivered to the post office (see Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227, 228-229 [1995]Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]cf. Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 [1994]), we do not deem the absence of such evidence fatal to plaintiff’s motion in light of the detailed description of all of the other office practices geared toward ensuring the likelihood that the notices were always properly addressed and mailed

My observation is that the Court of Appeals probably required less than what the Fourth Department required.  Does your affidavit recite how and when the document is generated and that the address has an indicia of accuracy?  Does your affidavit discuss the placement of the documents into envelopes and the placement of postage?  Does your affidavit discuss the trip to the mail room and, later, the trip to the post office?

 

14 Responses

  1. Captain America says:

    A little Poem from the Captain to celebrate the opening of his new movie tonight — “The Winter Soldier”

    If you can pocket bribes when all around you
    Are getting caught on video and tape;
    If crooked lawyers all are glad they found you,
    But honest ones are shocked, with mouths agape;
    If you can lie and not grow tired of lying,
    Or, being caught in lies, still stand your ground,
    If you can snooze amidst a case you’re trying,
    And wake up and resume without a sound;

    If you can read a case that stands for one thing
    Yet cite it for a principle it lacks;
    If you can write opinions that are something
    That nary an appellate judge would axe;
    If you’ll dismiss for want of prosecution
    When someone’s just a week or two behind,
    But grant your cronies time for resolution,
    And still pretend that justice is quite blind;

    If you can make one heap of your decisions
    But fail to notice how they all can’t square,
    Or cut a lawyer down with sharp incisions
    That make it clear how little that you care;
    If you can force your clerk and secretary
    To lie and cheat for you like they’re your thugs,
    And cover all your tracks, and be quite wary,
    And check your chambers twice a week for bugs;

    If you can dine with governors and mayors,
    But turn on them as quickly as a snake,
    And understand that truth is built in layers;
    And not be bothered knowing you’re a fake;
    If you can pound your gavel like you mean it,
    And make a senseless ruling just for fun,
    Yours is the Court and everything that’s in it,
    And – which is more – you’ll be a Judge, my son!

    Editors Note: The Captain has inside info on much of this.

    (c) 2007 James M. Maloney. Used by permission. All rights reserved. The above was written as a parody to Rudyard Kipling’s “if” in the wake of a well-publicized scandal involving a Brooklyn judge. It is not intended to disparage any sitting judge or justice.

  2. Who the *** are you, Captain America? This is my poem. I wrote it in 2007, just after the scandal about one of the more infamous bribe-taking Brooklyn judges (Garson) had reached its final stage, with his conviction on that charge. On April 4, 2014, I dusted this poem off for the first time in years and emailed it to two friends, Susan and Paul. No others. Now it appears here verbatim as your post, with no credit to me, as if it’s your own work, on that very same date. Hmmm. Please do not use my work and not give me credit. Please do not use my work at all!

    James M. Maloney

  3. Anonymous says:

    Dear Sir:

    The Captain isn’t a poet. It was a poem “from” Captain America not “by” Captain America.

    The Captain had no idea who wrote it. Your “work” will never be used again.

    No wonder your cause is such a failure. All you folks care about is ” … it was me … that was me.” You would think that you would want your word spread.

    As to your question:

    I’ll be all around in the dark. I’ll be everywhere. Wherever you can look, wherever there’s a fight, so hungry people can eat, I’ll be there. Wherever there’s a cop beatin’ up a guy, I’ll be there. I’ll be in the way guys yell when they’re mad. I’ll be in the way kids laugh when they’re hungry and they know supper’s ready …

    Captain America

  4. Wang Chung says:

    This is — ah Wang Chung.

    Captwan Americwa is a pwaygawist. How pwedictabwle.

  5. Captain America says:

    Hey Wang is your mother Barbara Walters.

  6. Hey Cap’n, what cause of mine do you think is “such a failure?” And which category of “you folks” are you lumping me into, exactly? While I’m asking, what “word” is it that you think I want to spread? I’m a little confused here. I’m just a lowly solo practitioner and occasional pro se litigant trying to eke out a modest living and/or accomplish a little progressive change by doing fun stuff like challenging NY’s nunchaku ban. I pretty much stay off the soapbox and out of the media. Just for the record, that “If” parody you published for me doesn’t really relate to any of my “causes,” least of all the one I just mentioned. I’ve had good judges all the way up and all the way down in that one.

  7. Stan Lee says:

    “When Captain America throws his mighty shield all those who oppose his shield must yield.”

  8. OK, I get it now. This little corner of the Web is a microcosm of the TV show, The Big Bang Theory. You’re all here, aren’t you? Stan Lee pops in for a guest appearance, Bawwy Kwipke posts a comment, calling himself Wang Chung. Hey, Stuart, open the door! Let me out of this crazy comic book store!

  9. Captain America says:

    Jimmy lad what’s with the confrontational tone. You are accepted here.

    And how do you know. Maybe there is Captain America. Maybe there are many Captain Americas with the same capabilities as the one in the movies,

    HGH, Testosterone; Dekka — that’s a superhero stack. It works wonders for me.

    Maybe they want the old America back. Maybe they wake up in the morning and they are not afraid to die and they are not afraid to kill for a little justice in this Gestapo land. And for a moment, if only for a moment, they have the power of a God.

    Scary stuff

  10. Thanks for the welcome, Captain. Good to be aboard.

    You almost had me going with that line, “HGH, Testosterone; Dekka — that’s a superhero stack. It works wonders for me.”

    At first I thought: “OK, I get it. This Captain America fits right in in this Big Bang Theory parallel universe: he’s really just Captain Sweatpants from the comic book store, on steroids!”

    But then I realized: HGH and testosterone are really just hormones our bodies secrete. And I Googled Dekka and found that, spelled that way, it’s stereo equipment (the steroid is Deca), so now I see the Captain is not doping after all.

    He’s just your garden-variety Italian Stallion who likes to blast the speakers for a little extra juice.

    ‘Course, that kill-or-die/power-of-god stuff in the next paragraph got a little bit fringe-y again…

    Anyway, Happy Pesach to the cast and crew here. Don’t eat too much TurBriskGefil.

  11. Kurt Lundgren says:

    Is Zuppa talking to himself?

  12. Captain America says:

    Jimmy lad the Captain is not out to win a spelling bee. “Dekka” is the phonetic spelling of the word for the product that comprises a part of my super soldier cocktail.

    Lad you just don’t produce the amount of HGH and Test that I have floating round me blood stream.

    And the Captain’s last name is Rogers not Stallone.

    I leave you with these final thoughts on you and America before I disappear. I will take pains to write them carefully and to think of them carefully.

    It went so well for you. With a place right where you wanted and the ones to fill it to. But some blows break the spell.
    That it hits you every day until you need to hit as well.

    It’s just a shadow of the man you should be. Like a garden in the forest that the world will never see. You have no thought of answers only questions to be filled. And it feels like hell

    It all seemed fine for you. Till the struggle of ambition turned in violence upon you. Sometimes a landslide comes
    If you’re hiding in that avalanche you need a place to run.

    It’s just a shadow of the woman you should be. Like a garden in the forest that the world will never see. And you have no thought of answers only questions to be filled. And it feels like hell

    I know there is no need for what’s been done. I know there is enough for everyone. Frustration brings a heavy hand to bear.
    And there’s never been a hand.

    Did we ever have it good. While we lived in Eldorado did we find the gold we should. If it really was the truth. Why are faces filled with anger that should only shine with youth

    It’s just a shadow of the people we should be. Like a garden in the forest that the world will never see. You have no thought of answers only questions to be filled. And it feels like hell

    The Captain signing off.

  13. Kurt Lundgren says:

    Stuart Adamson left us a bit too early, didn’t he Cap?

  14. Jim Maloney says:

    Just another of the Melancholy Soldiers, who, like Trudy, left Just A Shadow in this Big Country after hitting the Skids and going down Into The Valley.

Leave a Reply