Nassau Insurance v. Murray

46 N.Y.2d 828 (1978)

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.

Court of Appeals of the State of New York.

Argued October 27, 1978. Decided December 27, 1978.

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.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

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.

In each case: Order affirmed.