E4 Servs., Inc. v Lincoln Gen. Ins. Co.

[*1] E4 Servs., Inc. v Lincoln Gen. Ins. Co. 2014 NY Slip Op 50678(U) Decided on April 29, 2014 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Lowe, III, Shulman, JJ
570133/14.

E4 Services, Inc., a/a/o Katie Williams, Plaintiff-Respondent, - -

against

Lincoln General Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered October 23, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ruben Franco, J.), entered October 23, 2013, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The evidentiary proof submitted by the defendant-insurer established, prima facie, that its initial and follow-up verification letters were timely and properly mailed to plaintiff in accordance with defendant's mailing practices and procedures, as detailed in the submitted affidavits (see Preferred Mut. Ins. Co. v Donnelly, __ NY3d __, 2014 NY Slip Op 02328 [2014]; Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]). In opposition, plaintiff's "denial of receipt, standing alone, is insufficient to rebut the presumption" of receipt established by defendant's proof of mailing (Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]; see Trusts & Guar. Co. v Barnhardt, 270 NY 350, 354-355 [1936]). "In addition to a claim of no receipt, there must be a showing that routine office practice was not followed [by the mailer] or was so careless that it would be unreasonable to assume that the notice was mailed" (Nassau Ins. Co. v Murray, 46 NY2d at 830; see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d at 230-231; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]; Abuhamra v New York Mut. Underwriters, 170 AD2d 1003, 1003-1004 [1992]), a showing not here made by plaintiff. Nor did plaintiff provide a sufficiently detailed showing of its own procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims to raise a triable issue of fact (cf. Liriano v Eveready Ins. Co., 65 AD3d 524, 524-525 [2009]). Accordingly, since it is undisputed that plaintiff failed to respond to the duly issued verification requests, defendant was entitled to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concurI concurI concur.
Decision Date: April 29, 2014