Parisien v Travelers Ins. Co., 2019 NY Slip Op 51895(U)(App. Term 2d Dept. 2019)
One party says it was mailed. Another party says it was not received. Seems rather impossible to obtain a grant of partial summary judgment.
” Moreover, under the circumstances, finding, in essence, that it was “incontrovertible” for “all purposes in the action” (CPLR 3212 [g]) that plaintiff had mailed the claim forms to defendant is inconsistent with also finding that there are issues of fact as to defendant’s defense that it had not received the claims at issue (see Irina Acupuncture, P.C. v Auto One Ins. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50781[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] [“by demonstrating that it had received the claim forms at issue long after plaintiff claims to have mailed them, defendant raised a triable issue of fact as to whether plaintiff’s practices and procedures resulted in the timely mailing of the claim forms to defendant”]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [“by rebutting the presumption of receipt, plaintiff raised a triable issue of fact as to whether the verification requests had been properly mailed to plaintiff in the first place”]). Indeed, by, in effect, finding a triable issue of fact as to whether defendant received the claims at issue, the court contradicted its own statement that defendant’s “mere denial of receipt of the claims at issue was insufficient to rebut the presumption of receipt established by [plaintiff’s] proof of mailing.”
