Gongolewsky v Empire Ins. Co.

[*1] Gongolewsky v Empire Ins. Co. 2009 NY Slip Op 51427(U) [24 Misc 3d 1211(A)] Decided on July 2, 2009 Supreme Court, Kings County Starkey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 2, 2009
Supreme Court, Kings County

Carol Gongolewsky, Plaintiff,

against

Empire Insurance Company, Defendant.



21196/2003



APPEARANCES OF COUNSEL

For the Plaintiff(s):

LAW OFFICES OF MITCHELL J. WINN

1225 Franklin Avenue, Suite 325

Garden City, New York 11530

For the Defendant(s):

MIRANDA SAMBURSKY SLONE SKLARVIN VERVENIOTIS LLP.

The Esposito Building

240 Mineola Boulevard

Mineola, New York 11501

James G. Starkey, J.

Plaintiff Carol Gongolewsky, by motion dated December 23, 2008, seeks judgment notwithstanding the verdict and as a matter of law against defendant Empire Insurance Company pursuant to CPLR § 4404(a). Defendant has opposed this motion.

FINDINGS OF FACT AND PROCEDURAL BACKGROUND

On June 10, 2001 plaintiff suffered water damage to her real property located at 48 Julia Circle, Setauket, New York. Plaintiff received a distressing telephone call from her sister after turning on the faucet to her bathroom tub. Over the next hour and half to two hours, while plaintiff was in her backyard talking on the telephone with her sister, water flowed over the tub and throughout the second floor of the premises. At some point during the conversation, plaintiff remembered that she left the tub water running and proceeded into the house to turn the faucet off. With the help of her nephew, she cleaned up the water damage with towels and linens. A few days later, plaintiff left her residence for a planned trip and upon her return on June 17, 2001, discovered that the water damage was more severe than she originally believed. On or about June 18, 2001, plaintiff contacted her insurance broker and filed a claim with defendant, her property insurance carrier.

In the usual course of the claim process plaintiff was contacted by Sweet Claims, defendant's third party adjustment company, and gave a recorded statement. She also received a written acknowledgment of claim letter from defendant advising her that a sworn proof of loss and/or an examination under oath may be required of her as part of her contractual obligations with defendant after a claim is filed. On July 19, 2001, Rubin & Fiorella, LLP., counsel for Allcity Insurance Company,[FN1] sent plaintiff a certified letter enclosing a sworn proof of loss statement requesting that it be completed and filed within sixty days pursuant to the terms and conditions of her insurance policy. Further, plaintiff's examination under oath was scheduled for August 16, 2001 at their offices. Although this letter stated that Rubin & Fiorella were counsel to Allcity Insurance Company and not defendant, it did properly identify the premises where the subject claim arose, the alleged date of loss and the correct policy number for plaintiff's policy with defendant Empire Insurance Company.

On or about November 7, 2001, plaintiff received a letter from Courtney E. .Murphy, Esq., of Clausen Miller P.C., also claiming to be counsel for Allcity Insurance Company. This letter advised plaintiff that her claim was denied as she failed to submit a sworn proof of loss statement pursuant to the policy provisions and Insurance Law § 3407(a), as well as for her failure to appear for the August 16, 2001 examination under oath, as both were demanded in the July 19, 2001 letter from Rubin & Fiorella, LLP. As a result of this declination letter, plaintiff commenced this action claiming never to have received the request for a sworn proof of loss contained in the July 19, 2001 letter. Further, that even if she received the letter, it was not reasonable for her to comply with the July 19, 2001 request as it misidentified her insurance carrier.

After completion of discovery, defendant moved pursuant to CPLR § 3025(b) to amend [*2]its answer to assert a defense that plaintiff failed to comply with Insurance Law §3407(a), as well as summary judgment pursuant to CPLR § 3212 based upon that defense. Both motions were denied by the IAS judge, and on the ensuing appeal the Appellate Division, Second Department, modified the order to permit defendant to amend its answer. See Gongolewsky v. Empire Ins. Co., 51 AD3d 720, 858 NYS2d 306 (2nd Dept. 2008).

The parties thereafter appeared in Part 6 on December 4, 2008 for trial. On December 9, 2008, the jury returned a verdict in favor of defendant, finding that defendant proved by a fair preponderance of the credible evidence that it properly served plaintiff with a demand for a sworn statement of proof of loss and a demand for an examination under oath.

LAW AND APPLICATION

Plaintiff's motion to set aside the verdict pursuant to CPLR §4404(a) and grant judgment as a matter of law in favor of plaintiff as against defendant Empire Insurance Co.

Plaintiff urges entitlement to judgment as a matter of law against defendant in light of defendant's failure to produce the certified mail receipt acknowledging receipt by plaintiff of the July 19, 2001 letter from Rubin & Fiorella. Plaintiff urges that absent such a certificate, she is entitled to a presumption that the certified letter was not received. This contention is plainly without merit.

The author of the letter testified at trial concerning the standard office practice and procedure of Rubin & Fiorella designed to ensure that items are properly addressed and mailed. See Residential Holding Corp. v. Scottsdale Ins., 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001). The testimony was sufficient to raise a rebuttable presumption of the letter's mailing. Further, plaintiff requested a missing document charge concerning the certified mail receipt, over defendant's objection, and the jury was so charged. Accordingly, the jury was free (but not required) to draw the strongest possible inference against defendant, if they so chose, for defendant's failure to produce the receipt. Nevertheless the jury concluded, with sufficient evidentiary support, that the letter was mailed and received by plaintiff. Plaintiff is, therefore, not entitled to the relief requested.

Plaintiff's motion to set aside the verdict pursuant to CPLR § 4404(a) and grant a new trial as against defendant based upon the weight of the evidence standard

Plaintiff also seeks an order setting aside the jury verdict as against the weight of the evidence and directing a new trial. It is well established that a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence. See Baldwin v. City of New York, 290 AD2d 465, 736 NYS2d 248 (2nd Dept. 2002). The record in this matter reflected a sharp contrast in the evidence on the central issue of whether plaintiff received the request for a sworn proof of loss statement, which in turn rested on the credibility of the witnesses presented. Determinations regarding the credibility of witnesses are for the jury, which had the opportunity to see and hear the witnesses, and its resolution of the issues of credibility should be afforded great deference. See Raymond v. Henry, 306 AD2d 336, 760 NYS2d 661 (2nd Dept. 2003).

For a court to conclude that a jury verdict is not supported by legally sufficient evidence, there must be no valid line of reasoning and permissible inferences which could possibly lead [*3]rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial. See Mitchell v. Wu, 38 AD3d 507, 831 NYS2d 483 (2nd Dept. 2007). In considering such a motion, the court must view the evidence in a light most favorable to defendants. See Mitchell v. Wu, supraat 508.

Contrary to plaintiff's contention, the jury determination was supported by legally sufficient evidence. As noted above, there was substantial testimony alleging the mailing of the July 19, 2001 letter request with enclosure. The jury could have found that the evidence adduced at trial established that defendant, through its attorneys Rubin & Fiorella, did in fact mail the letter as part of its usual business practices and that plaintiff, in fact, received the letter. Plaintiff's own testimony on the issue of receipt is less than certain insofar as she stated that she had "no recollection" of receiving the letter. Further, when asked by her own counsel what she would have done with the letter had she received it, she admittedly would have discarded it as "junk mail," notwithstanding its standing as a letter from a law firm containing significant information concerning her loss. Considering plaintiff's prior knowledge of the requirement by defendant of a sworn proof of loss statement and her admitted receipt of all other correspondence concerning the claim, it cannot be said there was not valid line of reasoning to support the jury's verdict. Since the verdict reached is consistent with such a view, the jury may be presumed to have adopted it. See Harris v. Marlow, 18 AD3d 608, 610, 795 NYS2d 608 (2nd Dept. 2005). Plaintiff's remaining contention concerning "racial bias" is without merit.

CONCLUSION

In light of the above, plaintiff's motion is denied in its entirety. This constitutes the decision and order of the court.

____________________________

J.S.C. Footnotes

Footnote 1: Allcity Insurance company and defendant Empire Insurance Company are "sister" companies under the Empire Insurance Group.