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Triable issue of fact: 45-day ruleJune 3, 2018

Irina Acupuncture, P.C. v Auto One Ins. Co., 2018 NY Slip Op 50781(U)(App. Term 2d Dept. 2018)

“Proof that documents are mailed in accordance with a standard mailing practice and procedure gives rise to a rebuttable presumption that the documents have been received (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the Civil Court’s finding, by demonstrating that it had received the claim forms at issue long after plaintiff claims to have mailed them, defendant raised a triable issue of fact as to whether plaintiff’s practices and procedures resulted in the timely mailing of the claim forms to defendant (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]). Thus, plaintiff is not entitled to summary judgment on the second through fourth causes of action”

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