The United States Postal Service at the Appellate Term (again?)

Vista Surgical Supplies, Inc. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51056(U)(App. Term 2d Dept. 2012)

Prima facie case of mailing not satisfied.

“Significantly, the certified mail receipt did not contain amounts for postage and fees, and did not have a clerk identification and date, and the return receipt was not signed by a recipient and did not indicate a date of delivery. Defendant’s witness testified that defendant had not received the claim form in question until after the commencement of the action, some three years after the purported mailing”

How come Ms. Provider did not produce the person who mailed the bill or someone who could testify to the presumption of mailing?  This rule applies to certified mailing in addition to regular mailing.  Unfortunately, judges think that if something is mailed “certified mail”, the regular rules of mail litigation do not apply.  Certified mail offers a third alternative, i.e., proof of receipt, when the affiant provides proof that the cert number on the receipt matches that with the green card.  This is independent of proof of actual mailing or presumptive proof of mailing.

So, I believe the Court might have gotten this one wrong.  See,  Mid City Constr. Co., Inc. v Sirius Am. Ins. Co. 70 A.D.3d 789 (2d Dept. 2006).  Now, if the court credited the defense testimony and discredited Ms. Management Company’s testimony, then I would concur with the Appellate Term.

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