Fritzen v. Allstate Indemnity Co.

Appellate Division of the Supreme Court of New York

Fritzen v. Allstate Indemnity Co.

167 A.D.2d 932, 561 N.Y.S.2d 1002, 1990 N.Y. App. Div. LEXIS 14504

Appellate Division of the Supreme Court of the State of New York·Decided November 16, 1990·Published·Cited by 1 cases

Opinion

Order unanimously reversed on the law with costs and motion denied. Memorandum: Supreme Court erred in granting defendant’s motion to dismiss plaintiff’s complaint. Defendant failed to show, by proof of an office practice or procedure followed in the regular course of business, that the policy of insurance issued to plaintiff was duly addressed and mailed (see, Nassau Ins. Co. v Murray, 46 NY2d 828). The mere assertion by one of defendant’s agents that the policy "was sent”, supported by the agent’s reference to an ambiguous notation on a microfiche record purporting to document the mailing, is insufficient to give rise to the presumption that attaches to notices duly addressed and mailed (see, Friedman v Allcity Ins. Co., 118 AD2d 517; cf., Aetna Cas. & Sur. Co. v Preisigke, 139 AD2d 900). (Appeal from order of Supreme Court, Onondaga County, Murphy, J.—dismiss complaint.) Present—Dillon, P. J., Doerr, Pine, Lawton and Davis, JJ.

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Order unanimously reversed on the law with costs and motion denied. Memorandum: Supreme Court erred in granting defendant’s motion to dismiss plaintiff’s complaint. Defendant failed to show, by proof of an office practice or procedure followed in the regular course of business, that the policy of insurance issued to plaintiff was duly addressed and mailed (see, Nassau Ins. Co. v Murray, 46 NY2d 828). The mere assertion by one of defendant’s agents that the policy "was sent”, supported by the agent’s reference to an ambiguous notation on a microfiche record purporting to document the mailing, is insufficient to give rise to the presumption that attaches to notices duly addressed and mailed (see, Friedman v Allcity Ins. Co., 118 AD2d 517; cf., Aetna Cas. & Sur. Co. v Preisigke, 139 AD2d 900). (Appeal from order of Supreme Court, Onondaga County, Murphy, J.—dismiss complaint.) Present—Dillon, P. J., Doerr, Pine, Lawton and Davis, JJ.

Fritzen v. Allstate Indemnity Co., 167 A.D.2d 932, 561 N.Y.S.2d 1002, 1990 N.Y. App. Div. LEXIS 14504 (N.Y. Ct. App. 1990).

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Opinion

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