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Nassau Insurance v. Murray

46 N.Y.2d 828 Court N.Y. Decision date 1978-12-27 English

Contents

Majority

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Nassau Insurance Company, Appellant, v Diane M. Murray et al., Respondents. In the Matter of Empire Mutual Insurance Company, Appellant, v Philip Sash et al., Respondents.
Argued October 27, 1978;
decided December 27,1978
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APPEARANCES OF COUNSEL
Bertram Herman for Nassau Insurance Company, appellant.
Philip Hoffer, Rose L. Hoffer and Peter T. Affatato for Empire Mutual Insurance Company, appellant.
Charles F. Brady and Benjamin Purvin for Allstate Insurance Company, respondent.
Leonard Sheft for Aetna Insurance Company, respondent.
Dolores Gerber for Criterion Insurance Company, respondent.

OPINION OF THE COURT

Memorandum.

In both cases, the orders of the Appellate Division should be affirmed, with costs.

Where, as here, the proof exhibits an office practice and procedure followed by the insurers in the regular course of their business, which shows that the notices of cancellation have been duly addressed and mailed, a presumption arises that those notices have been received by the insureds (News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211 , 214; Gardam & Son v Batterson, 198 NY 175 , 178; Richardson, Evidence [Prince — 10th ed], § 80). Denial of receipt by the

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insureds, standing alone, is insufficient to rebut the presumption. In addition to a claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed (see Trusts & Guar. Co. v Barnhardt, 270 NY 350 , 354-355). We would hasten to add, however, that in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a notice of cancellation is always properly addressed and mailed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

In each case: Order affirmed.

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