Engel v. Lichterman

95 A.D.2d 536, 467 N.Y.S.2d 642, 1983 N.Y. App. Div. LEXIS 19857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1983
• Status: Published

Opinions

OPINION OF THE COURT

Mangano, J.

In this medical malpractice action, the defendant moved for summary judgment based on plaintiffs’ failure to comply with a conditional order of preclusion which was entered on consent. Annexed to defendant’s moving papers was a verified affidavit of service by mail of said order with notice of entry which correctly designated the address of plaintiffs’ attorney. In an opposing affidavit, plaintiffs’ attorney stated that he never received the aforesaid order. The question to be resolved on this appeal is whether plaintiffs’ attorney’s mere denial of receipt precludes the granting of summary judgment to defendant. In our view, the question must be answered in the negative.

I

The instant medical malpractice action was commenced by the plaintiffs against the defendant doctor in January, 1978. On March 24,1978, defendant interposed an answer, and on April 14, 1978, his attorney served a demand for a bill of particulars upon plaintiffs’ attorney.

On or about September 6, 1979, a motion for an order of preclusion was made by defendant and served on plaintiffs’ attorney, returnable on September 26,1979, on the ground that plaintiffs failed to timely comply with the defendant’s demand for a bill of particulars.

No papers were served by plaintiffs in opposition to the defendant’s motion to preclude. On November 1, 1979, an order was entered on consent, which conditionally granted the defendant’s motion to preclude. Specifically, that order stated in pertinent part: “Upon the foregoing papers this motion to preclude is granted (on consent) unless the bill of particulars is served within 30 days after service of a copy of this order with notice of entry upon the attorney(s) for the plaintiff”.

On December 12, 1979, defendant served on plaintiffs’ attorney the order of November 1, 1979, with notice of entry. After fruitlessly waiting 15 months for a response from plaintiffs’ attorney, defendant moved in March, 1981 for summary judgment dismissing plaintiffs’ action.

In his motion papers for summary judgment, defendant’s attorney annexed an affidavit of service of the November 1, 1979 conditional order of preclusion with notice of entry. The affidavit of service, dated December 12, 1979, and indicating mail service on that date, was duly notarized and correctly designated the address of plaintiffs’ attorney.

In opposition to defendant’s motion for summary judgment, plaintiffs’ attorney submitted an affidavit wherein he stated, inter alla, that: “My office * * * never received that order * * * I have inquired as to whether any of my employees at the time had any knowledge of receipt of the order * * * and they have indicated to me that they had no such knowledge. I can only surmise that this document was lost in the mail, since it was never delivered to our offices”.

Special Term granted defendant’s motion for summary judgment, unless plaintiffs’ attorney complied with certain conditions, i.e., payment of costs and attorney’s fees and service of a bill of particulars, within a specified period of time.

II

In our view, Special Term erred in failing to grant defendant’s motion for summary judgment unconditionally.

Contrary to the position taken by our colleagues, dissenting in part, plaintiffs’ attorney, in denying receipt of the conditional order of preclusion, never suggested in his opposing papers that the conditional order of preclusion was not mailed. Plaintiffs’ attorney only surmised in his opposing papers “that this document was lost in the mail”. Since plaintiffs’ attorney never challenged the mailing of the conditional order of preclusion in his opposing papers, a presumption arose that it was received. It has long been recognized in the law of evidence that a letter properly mailed is presumed to have been received (News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211; Dulberg v Equitable Life Assur. Soc., 277 NY 17). Plaintiffs’ attorney’s mere speculation that the order of preclusion “was lost in the mail” is insufficient to rebut the presumption of delivery and trigger the need for a hearing. In this regard, the opposing papers of plaintiffs’ attorney are clearly distinguishable from those in De Feo v Merchant (115 Misc 2d 286) and Vita v Heller (97 AD2d 464 [decided herewith]). In De Feo v Merchant (supra, pp 289-290): “evidence of frequent failures by the post office to properly deposit the mail within the mailboxes” of a building was submitted in addition to a mere denial of receipt.

In Vita v Heller (supra) plaintiff commenced an action by service of a summons only, on July 19,1980. Thereafter, on August 19, 1980, defendants allegedly served a notice of appearance and demand for the complaint. About 14 weeks later, on November 28, 1980, plaintiff attempted to serve the complaint but defendants rejected same as untimely, and moved, pursuant to CPLR 3012 (subd [b]), to dismiss the action for failure to serve a timely complaint. In support of their position, defendants produced an affidavit of service by mail of their notice of appearance and demand. In opposition to defendants’ motion, plaintiff’s attorney initially stated that he accepted “the statement set forth in [defendants’ attorneys’] affidavit that his office served a Notice of Appearance and Demand * * * on behalf of the defendants, on or about August 19, 1980”. In short, the plaintiff in Vita (supra) conceded that the notice of appearance and demand was mailed on August 19, 1980. However, in explanation of the untimely service of the complaint, plaintiff’s attorney claimed that the notice of appearance and demand was never received. In support of his argument, plaintiff’s attorney submitted an affidavit from his secretary in which she described her usual practice of making notations on office files when pleadings or notices of motion were received and also noting in her diary the corresponding response dates. She alleged that there were no notations concerning the notice of appearance and demand for a complaint on either the case file or in the office diary, indicating by implication that the notice of appearance and demand was never received.

In modifying the order appealed from and remitting for a hearing, two members of this court stated, in part: “Service of papers by mail is deemed complete upon deposit of such papers in the mail and such manner of service creates a presumption of proper mailing to the addressee (CPLR 2103, subd [b], par 2; A & B Serv. Sta. v State of New York, 50 AD2d 973, mot for lv to app den 39 NY2d 709). The burden then falls upon the addressee to present evidence sufficient to overcome the presumption and establish non-receipt. In the case at bar, the affidavit of plaintiff’s counsel’s secretary was sufficient to overcome the presumption and create a question of fact, the resolution of which requires a hearing”. (Vita v Heller, supra, p 464-465.) In contrast to the probative affidavit in Vita v Heller (supra) the mere denial of receipt in the case at bar is insufficient to overcome the presumption of delivery and trigger the need for a hearing.

Finally, there is authority for the proposition that a denial of receipt of a conditional order of preclusion will not suffice to excuse extensive delay in complying with same, when the conditional order of preclusion was entered on consent.

In Barton v La Pointe (67 AD2d 760), where the facts were strikingly similar to those at bar, defendants obtained a 30-day conditional order of preclusion on February 21, 1977, on consent based on plaintiffs’ failure to comply with a demand for a bill of particulars dated October 14, 1976. Plaintiffs never complied with the February 21, 1977 conditional order of preclusion and defendants thereafter moved for summary judgment. In their moving papers, defendants claimed that a copy of the preclusion order, together with notice of entry, were mailed to plaintiffs’ attorney on March 2, 1977. In opposition, plaintiffs’ attorney claimed that he never received the conditional order of preclusion with notice of entry, and argued that the 30-day time period never began to run. In granting defendants’ motion for summary judgment, the court stated in pertinent part (pp 760-761): “Service by mail is complete upon deposit of a properly stamped and addressed letter in a United States Post Office depository (CPLR 2103, subd [b], par 2). This service by mail is complete regardless of delivery to the addressee (A & B Serv. Sta. v State of New York, 50 AD2d 973, mot for lv to opp den 39 NY2d 709). Thus, when defendants moved for summary judgment, over 10 months had passed from when the preclusion order became final. There is no explanation for the protracted inactivity on the part of plaintiffs’ counsel. His contention that he never received a copy of the order and notice of entry cannot be deemed an excuse for the delay in serving the bill of particulars where, as here, there is a letter in the record from plaintiffs’ attorney indicating that he had. consented to the conditional preclusion order”.

Ill

Moreover, even assuming, arguendo, that plaintiffs’ attorney suggested in his opposing papers that the conditional order of preclusion was not mailed, we are of the view that a hearing on the issue of mailing is not necessary, and that defendant’s motion for summary judgment should have been granted unconditionally.

In De Forte v Doctors Hosp. of Staten Is. (66 AD2d 792), a defendant doctor moved to dismiss the complaint as against him for failure to prosecute. The motion was opposed by plaintiff. On December 7, 1977, Special Term ordered a dismissal of plaintiff’s complaint against the doctor unless “plaintiff shall serve and file a Note of Issue by within 60 days of service of a copy of this order, with Notice of Entry, upon the attorney for the plaintiff”. Plaintiff failed to comply with the order of Special Term.

Thereafter, defendant’s attorneys sent a letter dated February 24, 1978 addressed to plaintiff’s attorneys which referred to the conditional order of preclusion and stated, “we consider the Complaint to be dismissed”.

The defendant doctor then moved to strike the action from the calendar on the ground that plaintiff had failed to serve a note of issue within the 60-day time limitation set forth in the order of December 7, 1977. In his papers, the defendant doctor produced an affidavit dated December 15, 1977 indicating that on that date the conditional order of preclusion with notice of entry was served by mail. The affidavit was duly notarized and correctly designated the address of plaintiff’s attorney.

In opposition to defendant’s motion, plaintiff’s attorney stated in an affirmation that:

“[0]n February 24, 1978, a letter * * * was received by this office and once again a personal call was placed to advise the attorney’s that an order with notice of entry was never received * * *

“I have reviewed the affidavit of service by mail but have also carefully reviewed my file and attest to the fact that no order by this Defendant was ever received by this office * * *

“While I can appreciate the difficulty of a large firm visa-vis service of papers, I can further appreciate that, from time to time, a paper which was to have been served may, in fact, not have been deposited with the Postal Services”.

Clearly in De Forte (supra), plaintiff’s attorney was suggesting, in his opposing papers, that the conditional order of preclusion may not have been mailed. Nevertheless, this court granted defendant doctor’s motion to strike the action from the calendar stating: “The mere denial by plaintiff that he had ever received a copy of the order of December 7, 1977, with notice of entry, is insufficient to rebut the inference of proper mailing which may be drawn from defendant Di Benedetto’s affidavit of service and acknowledged warning letter to plaintiff (see Aetna Ins. Co. of Hartford, Conn. v Millard, 25 AD2d 341, 343; A & B Serv. Sta. v State of New York, 50 AD2d 973). Moreover, service by mail is complete regardless of delivery (see 14 Second Ave. Realty Corp. v Szalay, 16 AD2d 919).”

In 14 Second Ave. Realty Corp. v Szalay (16 AD2d 919), an order dismissing a counterclaim was dated and entered on December 20, 1961. A notice of appeal dated February 12,1962 was thereafter filed by defendant. Plaintiff moved to dismiss the appeal as untimely, and in support of the motion annexed an affidavit of service sworn to on December 27, 1961 indicating “service by mail on said date of the said order with notice of entry” (14 Second Ave. Realty Corp. v Szalay, supra, p 919). In opposition, defendant denied receipt of the order. In granting the plaintiff’s motion to dismiss the appeal, the First Department held (pp 919-920): “Service by mail is complete regardless of delivery where the mailing itself complies with all requisites. (Anthony v. Schofield, 265 App. Div. 423, 425.) The appellant denied receipt of the order. In some circumstances such denial would raise an issue which would require a hearing for its resolution. However, the affidavits here raise no triable issue as to the mailing”.

Nor does the recent decision of this court in Grinan v Santaella (89 AD2d 866) stand for a contrary position. In that case, the State Division of Human Rights, by order dated September 28, 1981, found that no probable cause existed for the petitioner’s allegations. Petitioner appealed to the State Human Rights Appeal Board by filing a notice of appeal. The appeal board then dismissed the appeal for untimeliness finding that (1) the division’s order was mailed September 28, 1981, (2) the notice of appeal was filed on November 23, 1981, (3) more than 15 days had elapsed from service of the order until filing of the notice of appeal and (4) the appeal was therefore untimely pursuant to section 297-a (subd 6, par c) of the Executive Law.

Petitioner then commenced a proceeding in this court pursuant to section 298 of the Executive Law to review the decision of the State Human Rights Appeal Board which had dismissed petitioner’s appeal to it as untimely. The division’s file and the record before this court in Grinan v Santaella (supra), did not contain an affidavit of service of the September 28, 1981 order of the division, or for that matter, any other indication that the division’s order of September 28, 1981 was, in fact, mailed. Accordingly, this court granted the petition and remitted to the appeal board for a “hearing and determination as to the mailing of the division’s determination and order and the timeliness of the notice of the appeal therefrom”. Specifically, this court stated (89 AD2d, at pp 866-867): “It is clear that service by mail is complete upon deposit of a properly stamped and addressed letter in a depository under the exclusive care and custody of the United States Post Office (CPLR 2103, subd [b], par 2; subd [c]); this service is complete regardless of delivery to or receipt by the claimant (see A. & B. Serv. Sta. v State of New York, 50 AD2d 973, mot for lv to app den 39 NY2d 709). The record before us, however, is devoid of any evidence to establish the actual date that the determination and order was mailed, or whether there was in fact proper and complete service by mail. Without such evidence, it is impossible for us to decide the issue of the timeliness of the filing of petitioner’s appeal to the appeal board.”

Our colleagues, dissenting in part, are of the view that (1) an issue of fact exists as to whether the order was mailed and (2) De Forte v Doctors Hosp. of Staten Is. (supra) and 14 Second Ave. Realty Corp. v Szalay (supra) represent indiscriminate and erroneous extensions of the holding of the Court of Appeals in Trusts &. Guar. Co. v Barnhardt (270 NY 350). Specifically, the dissent argues that (1) Trusts & Guar. Co. v Barnhardt (supra) involved a particular statute which provided that an affidavit of service constituted prima facie evidence of mailing and for that reason the court held that it could not be rebutted by a mere denial of receipt and (2) several courts have distinguished that case in situations where there was no statute making an affidavit of service by mail prima facie or presumptive proof thereof (see, e.g., Noftell v Gair Realty Corp., 32 AD2d 839; Teichberg v Blair & Co., 63 Misc 2d 1073; De Feo v Merchant, 115 Misc 2d 286, supra).

We disagree with the analysis offered by our colleagues. Although Trusts & Guar. Co. v Barnhardt (supra) can be distinguished on its facts, it is not cited as authority in the decisions of De Forte v Doctors Hosp. of Staten Is. (supra) and 14 Second Ave. Realty Corp. v Szalay (supra), and cannot be used to diminish the clear import of those decisions. Nor are the cases cited in the partial dissent persuasive or apposite.

The decision of Teichberg v Blair & Co. (supra, p 1078) accepted the proposition that “a letter not received was not duly mailed is the contrapositive of stating that a letter duly mailed was received” and therefore held that the former is to be accorded the same truth value as the latter — and as the latter is accepted as a valid presumption, the former must be as well”. However, a later decision, De Feo v Merchant (supra, p 288) states that this reasoning “does not appear to be the law of the State” and reiterates the general rule that “[t]he presumption of receipt from mailing does not bar the acceptance of competent evidence to establish that there was not, in fact, proper mailing”.

Finally, the partial dissent relies on the decision of this court in Noftell v Gair Realty Corp. (32 AD2d 839, supra). Although the facts in that case superficially resemble those at bar, an examination of the record in Noftell (supra) indicates that the attorney for the plaintiff who moved to amend the bill of particulars, was not the same attorney, nor did he have offices at the same address, as the attorney upon whom the preclusion order was served, as evidenced by the affidavit of service by mail of September 13, 1956 (see Anthony v Schofield, 265 App Div 423, supra). Under those circumstances, a hearing was warranted.

Moreover, even assuming, arguendo, that Noftell v Gair Realty Corp. (supra) is indistinguishable from De Forte v Doctors Hosp. of Staten Is. (supra) and 14 Second Ave. Realty Corp. v Szalay (supra), we are of the view that the latter two cases are the controlling precedents on this issue.

IV

Evidence of proper mailing of the conditional order of preclusion was submitted by defendant in the form of a correct and accurate affidavit of service by mail. Under these circumstances, a presumption arose that the conditional order of preclusion was received by plaintiffs’ attorney. Plaintiffs’ attorney’s mere denial of receipt was insufficient to rebut that presumption. In any event, the denial of its receipt cannot excuse the inordinate delay herein in serving a bill of particulars where the conditional order of preclusion was entered upon consent. Finally, the mere denial of receipt of the conditional order of preclusion, did not, under the circumstances of this case, raise an issue of fact as to the initial mailing of the conditional order of preclusion.

Accordingly, the defendant’s motion for summary judgment should have been granted unconditionally.