Hernandez v Merchants Mut. Ins. Co.

[*1] Hernandez v Merchants Mut. Ins. Co. 2006 NY Slip Op 52534(U) [14 Misc 3d 1215(A)] Decided on December 6, 2006 Supreme Court, Bronx County Salerno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2006
Supreme Court, Bronx County

Wilfred Hernandez, Plaintiff,

against

Merchants Mutual Insurance Company, Merchants Insurance Company of New Hampshire, Inc., Salim Yazigi and JamesCo Development Co., Inc., Defendants.



25912/02



Attorneys for Plaintiff:

DeAngelis & Hafiz

22 West First Street - Suite 407

Mount Vernon, NY 10550

(914) 667-1188

Attorneys for Defendant:

Baxter & Smith, P.C.

125 Jericho Turnpike - Suite 302

Jericho, NY 11753

(516) 997-7330

George D. Salerno, J.

Motion by defendant, MERCHANTS MUTUAL INSURANCE COMPANY and MERCHANTS INSURANCE COMPANY OF NEW HAMPSHIRE, INC. (MERCHANTS), for summary judgment, pursuant to CPLR §3212, dismissing plaintiff's complaint is denied. Plaintiff WILFRED HERNANDEZ'S cross motion for summary judgment is also denied.

BACKGROUND:

This is a declaratory judgment action brought against MERCHANTS, a commercial liability insurer, wherein plaintiff HERNANDEZ seeks a declaration that MERCHANTS, pursuant to the terms of a liability policy MERCHANTS issued to its insureds, defendants SALEM YAZIGI and JAMESCO DEVELOPMENT CO., INC., (JAMESCO) is obligated to defend and indemnify its insureds regarding the injury allegedly sustained by plaintiff arising from the accident that occurred on July 1, 1998.[FN1] MERCHANTS was not a party in the underlying personal injury action commenced by plaintiff or when plaintiff made a motion to enter a default against YAZIGI and JAMESCO. Instead, MERCHANTS alleges that the first notice it received was a letter from plaintiff's attorney, dated March 19, 2002, apprising it of the default entered against its insureds YAZIGI and JAMESCO.[FN2] With respect to the instant motion, MERCHANTS contends its insureds' failure to give them notice of the underlying personal injury action breached the contractual notice obligation contained in the policy issued to them. Hence, MERCHANTS argues it was justified in disclaiming coverage. [FN3] [*2]

In opposition to MERCHANTS' motion and in support of his cross-motion for summary judgment, HERNANDEZ contends that he never received MERCHANTS' disclaimer notice until September 26, 2002, approximately six months after Plaintiff's counsel notified MERCHANTS of the entry of a default against its insured.[FN4]

HERNANDEZ next argues that, in light of MERCHANTS' unjustified delay in providing written notice of its disclaimer, MERCHANTS' motion must be denied. [FN5] However, as discussed infra, summary judgment will not be granted in favor of either party where material triable issues of fact remain, namely whether or not MERCHANTS actually mailed a disclaimer in March 2002, whether HERNANDEZ received notice in a timely manner and also whether HERNANDEZ acted with due diligence to ascertain the carrier who insured YAZIGI and JAMESCO.

DISCUSSION:

DEFENDANTS' SUMMARY JUDGMENT MOTION

Pursuant to Insurance Law §3420,[FN6] an injured person has an independent right to notify [*3]an insurance company of a claim made against the company's insured; furthermore, this section requires an insurance company to acknowledge a notice of claim from an injured party, despite its insured's failure to adhere to contractual notice obligations set forth in the policy issued to the insured. (Insurance Law § 3420[a][3]; see also Becker v. Colonial Coop. Ins. Co., 24 AD3d. 702, 703, 806 NYS2d 720 [2d Dept. 2005]). In addition, an injured party also has the right to recover "any unsatisfied judgment against an insured directly from the insurer." (Becker, supra , 24 AD3d at 704; see Ins. Law § 3420[a][2]).

However, while an injured party has a right to seek relief directly from an insurer, the Court of Appeals recently held that an insurance company can effectively disclaim coverage without demonstrating prejudice where their insured is guilty of late notice of a lawsuit. (See Argo Corp. v. Greater NY Mut. Ins.Co., 4 NY3d 332, 339, 827 NE2d 762, 794 NYS2d 704 [2005]). In order to disclaim coverage Insurance Law § 3420 also requires the insurance company to provide written notice setting forth in specific detail the justification for the disclaimer (e.g., late notice) to all interested parties, including injured individuals or their representatives. (See General Acc. Ins. Group v. Cirucci, 46 NY2d 862, 864, 414 NYS2d 512 [1979]; Excelsior Ins. Co. v. Antretter Contracting Corp., 262 AD2d 124, 127, 693 NYS2d 100, 104 [1st Dept. 1999]; Insurance Law § 3420 [d]) [emphasis added]. In addition, an insurer must provide written notice of a disclaimer "as soon as is reasonably possible." (Ins.Law § 3420[d]). Notably, "An insurer's failure to provide notice as soon as is reasonably possible precludes [an otherwise] effective disclaimer, even [where] the policyholder's own notice to its insurer is untimely." (Matter of N.Y.Cen. Fire Ins. Co. v. Aguirre, 2006 N.Y Lexis 1484, 5, 2006 NY Slip Op 4749 [2006]; see also General Acctg. Ins. Group, supra , 46 NY2d at 864).

In the case at bar, it is undisputed that MERCHANTS first received notice of the underlying personal injury action on March 21, 2002, [FN7] approximately three years and eight months after HERNANDEZ's alleged injury occurred, [FN8] nearly nine months after their insureds [*4]were first served with the complaint [FN9] and three months after the Order granting a default judgment against its insureds. [FN10] According to the insurance policy in effect at the time of the alleged injury, MERCHANTS' insureds were required to provide "prompt" notice of any injury or possible claims. [FN11] This specific contract language makes it clear that "the absence of timely notice of an occurrence is a failure to comply with a condition precedent which, as a matter of law, vitiates the contract." (Argo, supra , 4 NY3d at 339, citing Security Mut. Ins. Co. of New York v. Acker-Fitzsimons Corp., 31 NY2d 436, 440-43, 293 NE2d 76, 340 NYS2d 902 [1976]).

Analogous to the facts in the case at bar, is Argo, supra , where the Court of Appeals found that an insured's delayed notice to its insurer of fourteen months, and three months after a default was entered against it was unreasonable. (Argo, supra , 4 NY3d at 340). Similarly, MERCHANTS did not receive notice of the action instituted by plaintiff until eight months after their insureds were served with the complaint in the underlying lawsuit, [FN12] and three months after the order granting a default was entered against them. [FN13]

Unlike Argo, in the instant matter the injured party notified MERCHANTS, (Argo, supra , 4 NY3d 332). HERNANDEZ's counsel does not discuss the timeliness of the notice sent to MERCHANTS nor does counsel provide an explanation to justify why it took more than three (3) months after a default was granted to notify MERCHANTS. (See Becker, supra , 24 AD3d at 704-05, holding that the standard of reasonableness regarding when an injured party is required to notify an insurer of his or her claim is less strict than for the insured, and "the injured person's rights must be judged by the prospects for giving notice that were afforded him, not by those available to the insured"). Hence, in light of the express contract requirements mandating "prompt" notification, ordinarily the unexplained delay by both the insured and the injured party in notifying MERCHANTS of the claim would not be deemed reasonable; and could form the basis to void the insurance contract. (See Argo, supra , 4 NY3d at 340).

However, the applicability of MERCHANTS' coverage for the injury sustained by the plaintiff depends on whether MERCHANTS complied with Insurance Law §3420(d) by furnishing timely written notice describing in specific detail the basis of their denial. (See Ins. Law § 3420[d]). [*5]

MERCHANTS contends that HERNANDEZ was orally notified of MERCHANTS' disclaimer during a March 21, 2002 telephone conversation between one of its employees and plaintiff's attorney.[FN14] First, MERCHANTS does not provide this court with authority supporting this contention that oral notice would satisfy the statutory requirement for disclaiming coverage. In addition, the plain language of Insurance Law §3420 clearly requires that notice of a disclaimer must be in written form. (Insurance Law § 3420[d]). Furthermore, even if oral notice is considered sufficient to satisfy Insurance Law §3420, MERCHANTS reliance on a conversation between one of its employees and plaintiff's attorney is inconclusive. This telephone conversation occurred after plaintiff's attorney served MERCHANTS with the default judgment. Mark James, MERCHANTS' employee, testified at an examination before trial that he allegedly told plaintiff's attorney that MERCHANTS disclaimed coverage. Nevertheless, neither James' deposition testimony nor his notes which presumably were made contemporaneously during his conversation with plaintiff's attorney convincingly supports MERCHANTS' argument that MERCHANTS issued a disclaimer months before this conversation. James' note contains one reference to the disclaimer where James wrote "advised probable disclaimer."[FN15] Moreover, although plaintiff's attorney requested a copy of the disclaimer letter it took five (5) separate letters from plaintiff's attorney before MERCHANTS decided to send counsel the disclaimer letter which incidentally is dated February 28, 2002 instead of March 28, 2002.

MERCHANTS, also, asserts that, aside from oral notice given to plaintiff's counsel, notice was given to all parties, including plaintiff's counsel, in a letter allegedly mailed on March 28, 2002 which if accurate would indicate that a disclaimer was mailed approximately nine days after MERCHANTS received notice of the default. [FN16] According to the Court of Appeals, "the timeliness of the insurer's disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage." (Aguirre, supra , 2006 NY Lexis 1484 at 4, quoting First Fin. Ins. Co. v. Jetco Contr. Corp, 1 NY3d 64, 67, 801 NE2d 835, 769 NYS2d 459 [2003]). Case law interpreting the meaning of "timeliness" under Ins. Law §3420(d) indicates that nine days would likely satisfy this requirement of the statute. (See Argo, supra , 4 NY3d at 336, finding that notice of disclaimer sent approximately one month after initial apprisal satisfied Ins. Law § 3420; Becker, supra , 24 AD3d at 702, finding notice sent 3 days after notification satisfactory).

However, plaintiff's counsel contends that neither he nor his client received a disclaimer letter until September 26, 2002, nearly six months after plaintiff's counsel provided notice of the default judgment and nearly six months after MERCHANTS allegedly mailed the letter to all parties.[FN17] MERCHANTS' unexplained six-month delay in providing written notice would be [*6]considered untimely under Ins. Law §3420(d). (See Jetco Contr. Corp., supra , 1 NY3d at 68-71, holding that a 48-day unjustified delay was unreasonable as a matter of law). Thus, MERCHANTS' contention in the case before this court fundamentally turns on whether MERCHANTS' disclaimer letter was mailed in a timely manner within the meaning of Insurance Law § 3420(d).

It is settled law that a properly addressed and stamped envelope placed in a U.S. mailbox is presumed to have been received by the addressee. (See generally Nassau Ins. Co v. Murray, 46 NY2d 828,829,386 NE2d 1085, 414 NYS2d 117 [1978]; Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 AD3d 161, 161-62, 798 NYS2d 379 [1st Dept. 2005]). To be afforded such a presumption, however, a party must present either "proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed." (Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 679, 729 NYS2d 776 [2d Dept. 2001]; see also Murray, supra , 46 NY2d at 829).

The Appellate Division recently held that testimony which included a description of a mailing procedure such as a certificate of mailing, and a mail ledger signed, dated, and stamped by a U.S. postal worker, sufficiently described office procedures designed to ensure that mailings are done properly creating a presumption of mailing. (Residential Holding Corp., supra , 286 AD2d at 679). On the other hand, where a defendant insurance company submitted an affidavit by its employee who merely stated that the insurer "wrote directly to the insured," unsupported by either a proof of mailing [FN18] or proof of standard office practice, the Court found that plaintiff's denial of receipt "raise[d] questions of fact about the effectiveness of defendant's purported notice of cancellation that must await determination at trial." (Tracy v. William Penn Life Ins. Co., 234 AD2d 745, 748, 650 NYS2d 907 [3d Dept. 1996]).

In the case at bar, MERCHANTS did not produce sufficient evidence to create a presumption of mailing because there is no actual proof of mailing, [FN19] nor is there adequate proof to "establish, as a matter of law, that the defendant followed office practices geared so as to ensure the likelihood' that . . . . [disclaimers] were always properly addressed and mailed . . . ." (See Hospital for Joint Diseases v. Nationwide Mut. Ins.Co., 284 AD2d 374, 375, 726 NYS2d 443 [2d Dept. 2001], quoting Clark v. Columbian Mut. Life Ins. Co., 221 AD2d 227, 633 N.Y.S.2d 311 (1st Dept. 1995). Furthermore, even if the evidence offered by MERCHANTS was sufficient to create the presumption of mailing, HERNANDEZ produced compelling evidence that effectively rebuts the presumption of mailing. Hence, there remain triable issues of fact regarding the timeliness of MERCHANTS' notice of disclaimer.

In the case at bar, there are several factual concerns surrounding MERCHANTS' actual disclaimer letter. First, the letter is dated February 28, 2002, rather than March 28, 2002, when it [*7]was supposedly mailed. [FN20] While James [FN21] testified that the date was a typographical error, such an irregularity is disconcerting and raises questions of fact and credibility. [FN22] (See e.g., Burr v. Eveready Ins. Co., 253 AD2d 650, 652, 677 NYS2d 547 [1st Dept. 1998], finding that irregularities in a copy of a disputed letter raised issues of fact).

Furthermore, the top of the disclaimer letter specifies that it was mailed "certified mail, return receipt." [FN23] However, MERCHANTS did not produce proof that the letter was sent certified mail to HERNANDEZ, and only produced the signed certified mail return receipt cards from their insureds. [FN24] (See e.g., New York & Presbyterian Hosp. v. Allstate Ins. Co., 2006 NY Slip Op 3558, *2, 29 AD3d 547, 814 NYS2d 687 [2d Dept. 2006], finding that without proof of certified mailing or proof of signed certified mail return receipt cards, plaintiff was unable to create a presumption of delivery; see also State Farm Mut. Auto. Ins. Co. v. Kankam, 3 AD3d 418, 770 NYS2d 714 [1st Dept. 2004]).

When questioned about the method used by MERCHANTS in mailing letters, James stated that it was regular office practice for disclaimer letters to be mailed to the policy-holder by certified mailed and to non-policy holders by regular mail.[FN25] Yet, James does not address the envelopes himself, [FN26] and it is unexplained how a mail-room employee would be able to distinguish between those addressees that should receive a letter via certified or regular mail despite the explicit directive on the top of the letter. In this case, for instance, the letter indicates that YAZIGI is the policy-holder, however the letter does not state how JAMESCO is connected to the policy-holder; yet, JAMESCO, nonetheless allegedly received the disclaimer letter via certified mail. [FN27] It is also unexplained why the addresses of YAZIGI and JAMESCO on the disclaimer letter do not match the addresses on the return receipt cards that allegedly correspond [*8]to the disclaimer letters. [FN28] Furthermore, a U.S. postal stamp on the top of one of the certified mail return receipt cards indicates that one of the disclaimer letters was mailed on March 26, 2002, despite Mr. James' testimony stating that the letter was mailed to all parties on March 28, 2002.[FN29]

In addition to the absence of actual proof of mailing, James' limited knowledge regarding MERCHANTS' mailing procedures and the workings of the mail-room is insufficient to establish as a matter of law that the subject letter was properly addressed and mailed. [FN30] (See Hospital for Joint Diseases, supra , 284 AD2d at 375, holding that an employee's conclusory statements regarding office practices in the absence of personal knowledge was insufficient to make a prima facie showing of its entitlement to judgment as a matter of law). According to James, his role in the mailing a letter ends when he places the letter in an out-box that is emptied at uncertain intervals by unspecified mail-room employees. [FN31] Notably, James did not prepare the addresses on the envelope, "the green card[,] or the certified mail receipts." [FN32] According to his testimony, the only assurances that James can provide that the disclaimer letter was mailed via regular mail are (1) that he placed four copies of the letter in the out-box and (2) that he does not have a return receipt from plaintiff suggesting that without the return receipt it must have been mailed via regular mail. [FN33]

However, James' assurances do not conclusively satisfy the standard that the office practice be designed to ensure that letters are properly addressed and mailed to establish a prima facie entitlement to summary judgment. (See Electronic Servs. Int'l. v. Silvers, 233 AD2d 361, 362, 650 NYS2d 243 [2d Dept. 1996], finding that an employee's affidavit stating that he placed a disputed letter in his office's "out-mail" box failed to establish a prima facie entitlement to summary judgment even when considered in conjunction with supporting documentation; see also Residential Holding Corp., supra , 286 AD2d at 680).

When questioned further on the basis of his assurances, James stated "my basis is that it's someone's job to send it out." [FN34] Hence, since James did not actually mail the letter himself nor could he provide first-hand knowledge regarding MERCHANTS' mailing procedures, [*9]MERCHANTS cannot be afforded a presumption of mailing based on James' testimony alone. (See Bronx Expert Radiology, P.C. v. Travelers Ins. Co., 2006 NY Slip Op 51227U, *1-2, 12Misc.3d 135A, 820 NYS2d 841 [1st Dept. 2006], holding that "no presumption of mailing was created because the affidavit of plaintiff's representative neither stated that she actually mailed the [letter] . . . nor described plaintiff's mailing office practice and procedures.").

Unfortunately, MERCHANTS did not produce an employee from the mail-room to supplement James' testimony regarding the relevant details of the company's mailing practice nor did MERCHANTS provide any supporting documentation describing their mailing procedures, such as a policy manual. Furthermore, one court has noted that failing "to establish by means of a clerk, postal worker, or other impartial witness . . . that the alleged . . . notice . . . was in fact delivered into the exclusive control' of the United States Postal Service" militates against the presumption of mailing. (Silvers, supra , 233 AD2d at 362). Therefore, James' testimony, standing alone, is insufficient to establish "proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed." (Residential Holding Corp., supra , 286 AD2d at 680; see also Macon v. Arnlie Realty Co., 207 AD2d 268, 271, 615 NYS2d 28 [1st Dept. 1994], finding that a company's employees "conclusory, vague and often ambiguous statements are insufficient to establish a standard office procedure in adequate detail to warrant the drastic remedy of summary judgment.").

However, even assuming that MERCHANTS was able to submit sufficient proof to establish a presumption of mailing, HERNANDEZ offers proof to successfully rebut this presumption. In opposition, HERNANDEZ submits a statement by one of the partners of the firm representing him, Mr. DeAngelis, affirming that MERCHANTS' letter was never received by his office until September 2002.[FN35] In support of this affirmation, DeAngelis set out in specific detail the firm's protocol for receiving mail in addition to describing the many attempts undertaken by his office to procure a copy of the disclaimer letter from James. [FN36] DeAngelis' affirmation raises genuine doubts as to whether MERCHANTS' letter was received by his firm prior to September 26, 2002. In a similar situation, the Appellate Division held that an affirmation firmly denying the receipt of a letter combined with descriptions of the strict procedures for receiving mail is sufficient to rebut a presumption of mailing. (Silvers, supra , 233 AD2d 362-63).

In addition, all of the unexplained inconsistencies regarding the disclaimer letter previously outlined in this opinion (e.g. the incorrect date, incorrect addresses, etc.) impairs MERCHANTS' alleged adherence to office practices in the mailing of the disclaimer letter. (See Burr, supra , 253 AD2d at 652, holding that inconsistencies in the copy of the allegedly mailed letter in dispute were "enough to raise doubts as to whether standard office practice[s] and procedure[s] were followed in this case . . . this suspect irregularity is enough to rebut the presumption of regularity in mailing the notice.").

In the absence of actual proof of mailing and/or standard mailing practice, utilized MERCHANTS' factual issues remain that "must await determination at trial." (See Tracy, supra , [*10]234 AD2d at 748). In sum, HERNANDEZ produces sufficient evidence to rebut the presumption of mailing. Therefore, MERCHANTS' motion for summary judgment is denied since there exist triable issues of fact, specifically whether the disclaimer notice was timely mailed in March of 2002. (See Macon, supra , 207 AD2d at 271).

PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

Despite MERCHANTS' failure to establish that it mailed the March 2002 disclaimer letter, summary judgment in favor of the Plaintiff, HERNANDEZ, is also inappropriate at this time.

HERNANDEZ in support of his cross motion states that his attorneys received MERCHANTS' disclaimer letter, only after several attempts were made by his attorneys to obtain the disclaimer, on September 26, 2002.[FN37] While this unjustified delay is untimely as a matter of law, (see Jetco Contr. Corp., supra , 1 NY3d at 68-71), the presence of triable issues of fact regarding whether MERCHANTS actually timely mailed the disclaimer letter, does not axiomatically permit this court to grant plaintiff's cross motion.

The affirmative relief sought by plaintiff requires this court to determine whether plaintiff, the injured party, pursued his right to notify MERCHANTS of their insureds default with due diligence "as was reasonably possible." Promptness, as noted by the court in Lauritano v.American Fidelity Fire Ins. Co. 3 AD2d 564, 162 NYS2d 553 (1st Dept. 1957) Aff'd 4 NY2d 1028, 152 NE2d 546, 177 NYS2d 530 (1958), is relative and measured by circumstance. In determining the reasonableness of an injured parties' notice, the notice required is measured less rigidly than that required of the insureds (see Mount Vernon Fire Ins. Co., v. N1BA Constr., 195 AD2d 425, 600 NYS2d 936 [1st Dept. 1993] and the sufficiency of notice by an injured party is governed not by mere passage of time but by the means available for such notice (National Grange Meet Ins. Co., v. Diaz 111 AD2d 700, 701) 490 NYS2d 516 1st Dept. 1985).

In the case at bar, what is at issue is whether plaintiff, who is considered pursuant to Insurance Law § 3420(a)(2) as an injured party, proceeded diligently to ascertain the existence of coverage (see Ringel v. Blue Ridge Ins. Co., 293 AD2d 460, 740 NYS2d 109 [2nd Dept.2002] ); cf. Greyhound Corp. v. General Acci. Fire & Life Assurance Corp., 14 NY2d 380, 200 NE2d 625, 251 N.S.2d 958 [1964]; NY Mutual Fire Ins. Co. v. Guarino, 11 AD3d 909 784 NYS2d 268 [4th Dept. 2004]; also Steinberg v. Hermitage Ins. Co., 26 AD3d 426, 809 NYS2d 569 [2nd Dept. 2006] ). The record before this court regarding the diligent efforts employed by HERNANDEZ's attorneys to ascertain the carrier and the coverage provided to YAZIGI and JAMESCO is also inconclusive thus warranting denial of plaintiff's cross motion.

Accordingly, plaintiff's cross motion is denied.

Dated:12/6/06

J.S.C. Footnotes

Footnote 1: Plaintiff HERNANDEZ's Supplemental Summons and Amended Complaint naming MERCHANTS' insureds as Defendants; Justice Friedman's Order dated December 17, 2001, Defendants' Motion, Exhibit "D."

Footnote 2: Plaintiff counsel's letter dated March 19, 2002, Defendants' Exhibit "D".

Footnote 3: Affirmation by Defendant MERCHANTS' Counsel, Riccobono ¶¶8,

16-17.

Footnote 4: De Angelis Affirmation ¶ 5; also Hafiz Affirmation ¶ 7 .

Footnote 5: Hafiz Affirmation ¶ 10.

Footnote 6: Ins. Law §3420 reads in relevant part:

(a)(2) A provision that in case judgment against the insured or his personal representative in action brought to recover damages for injury sustained or loss or damage occasioned during the life of the policy or contract shall remain unsatisfied at the expiration of thirty days from the serving of notice of entry of judgment upon the attorney for the insured, or upon the insured, and upon the insurer, then an action may, except during a stay or limited stay of execution against the insured on such judgment, be maintained against the insurer under the terms of the policy or contract for the amount of such judgment not exceeding the amount of the applicable limit of coverage under such policy contract.

(a)(3) A provision that notice given by or on behalf of the insured, or written notice by or on behalf of the injured person or any other claimant, to any licensed agent of the insurer in this state, with particulars sufficient to identify the insured, shall be deemed notice to the insurer....

(d) If under a liability policy delivered or issued for delivery in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant. [emphasis added].

Footnote 7: Affirmation by Defendants Counsel, Riccobono ¶ 7; Affirmation by DeAngelis, ¶ 3.

Footnote 8: HERNANDEZ's alleged injury occurred on July 1, 1998. (Plaintiff's Complaint, Defendants Exhibit "A" ¶ 9).

Footnote 9: Affidavit of Service, Supplemental Summons and Complaint demonstrating service on YAZIGI on June 16, 2001, and JAMESCO on June 19, 2001, Defendants' Exhibit "D".

Footnote 10: Justice Friedman's Order, dated December 17, 2001, Defendants' Exhibit "D".

Footnote 11: Defendants' Exhibit "H".

Footnote 12: Affidavit of Service, Supplemental Summons and Complaint, on YAZIGI on June 16, 2001 and JAMESCO on June 19, 2001, Defendants' Exhibit "D".

Footnote 13: Justice Friedman's Order dated December 17, 2001, Defendants' Exhibit "D".

Footnote 14: Reply Affirmation, Defendant MERCHANTS' Counsel, Riccobono ¶ 8.

Footnote 15: James Handwritten Notes, Plaintiff's Cross Motion. Exhibit "B".

Footnote 16: James Disclaimer Letter, Defendants' Motion, Exhibit "E".

Footnote 17: Affirmation by DeAngelis ¶ 5; also Hafiz Affirmation ¶ 7.

Footnote 18: Examples of proof of mailing include a certificate of mailing or an affidavit of one with personal knowledge. Tracy, supra , 234 AD2d at 748.

Footnote 19: Defendants' Exhibit "G", signed receipts of YAZIGI and JAMESCO.

Footnote 20: James disclaimer letter, Defendants' Exhibit "E".

Footnote 21: At the time the disputed letter was sent, James was a litigation claims representative employed by MERCHANTS'. James' Examination Before Trial, p.5. Defendants' Exhibit "F".

Footnote 22: James' Examination Before Trial, p.14, Defendants' Exhibit "F".

Footnote 23: James' disclaimer letter, Defendants' Exhibit "E".

Footnote 24: Defendants' Exhibit "G", signed receipts of YAZIGI and JAMESCO.

Footnote 25: James Examination Before Trial, p.17, Defendants' Exhibit "F".

Footnote 26: Id. at p. 9.

Footnote 27: Defendants' Exhibit "G".

Footnote 28: Compare the addresses provided on James' dated disclaimer letter, Defendants' Exhibit "E", with the addresses on the signed receipts of YAZIGI and JAMESCO, Defendants' Exhibit "G".

Footnote 29: James' Examination Before Trial, pp. 14, 19, Defendants' Exhibit "F".

Footnote 30: James' Examination Before Trial, pp. 9, 16,37, Defendants' Exhibit "F".

Footnote 31: Id. at p. 9.

Footnote 32: Id..

Footnote 33: Id. at 25-26.

Footnote 34: Id..

Footnote 35: DeAngelis Affirmation, ¶ 6.

Footnote 36: Id..

Footnote 37: DeAngelis Affirmation ¶ 5; also Hafiz Affirmation ¶ 7.