Mailing from the Court of Appeals – kind of important

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 ; Matter of Lumbermens Mut. Cas. Co. , 135 AD2d 373, 375 ; cf. Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 ), 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?

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