E4 Servs., Inc. v Lincoln Gen. Ins. Co., 2014 NY Slip Op 50678(U)(App. Term 1st Dept. 2014)
(1) “The evidentiary proof submitted by the defendant-insurer established, prima facie, that its initial and follow-up verification letters were timely and properly mailed to plaintiff in accordance with defendant’s mailing practices and procedures, as detailed in the submitted affidavits (see Preferred Mut. Ins. Co. v Donnelly, __ NY3d __, 2014 NY Slip Op 02328 [2014]…) Note that this is the first citing of the recent Court of Appeals precedent of Donnelly.
(2) “In opposition, plaintiff’s “denial of receipt, standing alone, is insufficient to rebut the presumption” of receipt established by defendant’s proof of mailing (Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]; see Trusts & Guar. Co. v Barnhardt, 270 NY 350, 354-355 [1936]).” There is nothing new here.
(3) “In addition to a claim of no receipt, there must be a showing that routine office practice was not followed [by the mailer] or was so careless that it would be unreasonable to assume that the notice was mailed” (Nassau Ins. Co. v Murray, 46 NY2d at 830; see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d at 230-231; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]; Abuhamra v New York Mut. Underwriters, 170 AD2d 1003, 1003-1004 [1992]), a showing not here made by plaintiff. Nor did plaintiff provide a sufficiently detailed showing of its own procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims to raise a triable issue of fact”. This passage suggests that the provider (or carrier in the non-receipt context) must prove that the routine procedure was not followed AND the provider (or carrier in the non-receipt context) must establish a detailed showing of an office practice thereby allowing a presumption of non-receipt to be established.
