Charles Deng Acupuncture, P.C. v Nationwide Ins., 2019 NY Slip Op 50641(U)(App. Term 2d Dept. 2019)
(1) “The supporting affidavit of defendant’s underwriting analyst stated that the notice of cancellation had been issued and mailed to the assignor on July 9, 2009 “both VIA CERTIFIED MAIL and VIA U.S. MAIL” “in accordance with the business practices of this office,” without setting forth any details of those practices. It is noted that defendant did submit proof as to defendant’s mailing practices and procedures with respect to claims processing, but not as to the process involved where other correspondence, such as a notice of cancellation, is mailed. Consequently, defendant failed to establish, prima facie, that the notice of cancellation had been mailed to the insured in accordance with Pennsylvania law in order to effectuate the cancellation (see 31 Pa. Code § 61.5; Island Life Chiropractic, P.C. v Country Wide Ins. Co., 53 Misc 3d 131[A], 2016 NY Slip OP 51378[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant is not entitled to summary judgment dismissing the complaint on this basis. “
(2) The lesson here, and many of us have fallen victim, is to make sure your stock mailing affidavit takes into account the specific type of document you are alleging was mailed. Sometimes these affidavits are too tightly wound and, as seen here, would have cost Defendant summary judgment under the old summary judgment rules or had Plaintiff alleged he never received a denial.
One Response
New York State avoids this issue by providing for a “certificate of mailing’ for mailing notices of cancellation. Once the insurer produces the certificate of mailing it is presumptive evidence that the cancellation notices was mailed.