Matter of Matter of Government Empls. Ins. Co. v Morris, 2012 NY Slip Op 03448 (2d Dept. 2012).
I would seriously take notice of this case. This is probably the standard to prove non-receipt, both in a traverse setting and in the usual mailing battles that no-fault fosters.
“As a general rule of evidence, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [internal quotation marks omitted]). Here, the appellant adduced evidence at the hearing that gave rise to a rebuttable presumption that the November 3, 2009, letter was duly received by GEICO (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229). However, GEICO rebutted this presumption by presenting evidence demonstrating its “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525; see Electronic Servs. Intl. v Silvers, 233 AD2d 361). In addition, to the extent that the conclusion of the Supreme Court was based upon credibility determinations, such determinations are entitled to deference on appeal (see Matter of Allstate Ins. Co. v Albino, 16 AD3d 682, 683; Contarino v North Shore Univ. Hosp. at Glen Cove, 13 AD3d 571).”
| er of Government Empls. Ins. Co. v Morris |
| 2012 NY Slip Op 03448 |
One Response
There was minimum proof that the letter was mailed. An affirmation of the attorney is only worth the Paper it is written on and Obviously there were credibility issues in this case. If there was POM it would not have went his way. It’s a game of which affirmation the Court likes when there is no real substantial proof. This doesn’t surprise me at all. Seen it a 100 times in Arb going both ways.