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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 16, 1990

StatusPublished

Cited by1 cases

This text of 167 A.D.2d 932 (Fritzen v. Allstate Indemnity Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

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.

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Bluebook (online)

167 A.D.2d 932, 561 N.Y.S.2d 1002, 1990 N.Y. App. Div. LEXIS 14504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fritzen-v-allstate-indemnity-co-nyappdiv-1990.

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