The Second Department determined plaintiff insurance company's motion for summary judgment under the no-fault insurance law should have been denied. Plaintiff alleged defendant failed to comply with the requirement that defendant submit to an examination under oath (EUO). The Second Department determined plaintiff did not demonstrate the letters to defendant scheduling the EUO were timely and properly mailed:
Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” … . ” The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” … . However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed … . “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” … .
As the defendant correctly contends, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the EUO letters to the defendant. The affirmation of the plaintiffs' counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed … . Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 2016 NY Slip Op 03485, 2nd Dept 5-4-16
INSURANCE LAW (NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)/NO-FAULT INSURANCE (NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)