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Nassau Insurance Company v. Murray

Court of Appeals of the State of New York
Dec 27, 1978
46 N.Y.2d 828 (N.Y. 1978)

Summary

applying New York law

Summary of this case from Wiener v. AXA Equitable Life Ins. Co.

Opinion

Argued October 27, 1978

Decided December 27, 1978

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, MARIO J. CARIELLO, J.

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.


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 N.Y. 211, 214; Gardam Son v Batterson, 198 N.Y. 175, 178; Richardson, Evidence [Prince — 10th ed], § 80). Denial of receipt by the 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 N.Y. 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.


Summaries of

Nassau Insurance Company v. Murray

Court of Appeals of the State of New York
Dec 27, 1978
46 N.Y.2d 828 (N.Y. 1978)

applying New York law

Summary of this case from Wiener v. AXA Equitable Life Ins. Co.

In Nassau Insurance Company v. Murray, 46 NY2d 828 (1978), the court held that where proof shows that a certain office mailing procedure was followed, a presumption arises that the mailed items were received.

Summary of this case from Morgan, Lewis Bockius v. Ibuydigital.com
Case details for

Nassau Insurance Company v. Murray

Case Details

Full title:NASSAU INSURANCE COMPANY, Appellant, v. DIANE M. MURRAY et al.…

Court:Court of Appeals of the State of New York

Date published: Dec 27, 1978

Citations

46 N.Y.2d 828 (N.Y. 1978)
414 N.Y.S.2d 117
386 N.E.2d 1085

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