(Download) "Michael Caprino v. Nationwide Mutual Insurance Co." by Supreme Court of New York " eBook PDF Kindle ePub Free
eBook details
- Title: Michael Caprino v. Nationwide Mutual Insurance Co.
- Author : Supreme Court of New York
- Release Date : January 12, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 70 KB
Description
[34 A.D.2d 522 Page 522] Judgment entered September 26, 1968, as amended November 27, 1968, declaring valid respondent's cancellation of plaintiff's
automobile liability insurance policy, reversed on the law and the facts, with $50 costs and disbursements to the appellants,
and a new trial directed. The burden of establishing the mailing of the notice of cancellation was on the insurer. (De Persia
v. Merchants Mut. Cas. Co., 268 App. Div. 176, affd. 294 N. Y. 708; Crown Point Iron Co. v. Aetna Ins. Co., 127 N. Y. 608;
United States Fid. & Guar. Co. v. Nationwide Mut. Ins. Co., 34 Misc. 2d 486, 488.) The presumption of the delivery of
the notice does not arise until adequate proof of mailing has been adduced. The defendant's proof of its office practice and
procedure followed in the regular course of business was insufficient properly to invoke the presumption and to overcome plaintiff's
denial of receipt of the notice of cancellation. But under the circumstances, rather than direct a declaration in favor of
plaintiff, we deem that the interests of justice warrant giving the insurance company an opportunity upon a new trial to supply
further proof, if such proof exists. In a case we deem decisive (Boyce v. National Commercial Bank & Trust Co., 41 Misc.
2d 1071, affd. 22 A.D.2d 848 [3d Dept., 1964]) the plaintiff sued the same insurance company, respondent herein, on a fire
loss claim. The insurer disclaimed liability on the ground it had previously notified plaintiffs of the cancellation of the
policy. In support of its claim of cancellation, the insurer [34 A.D.2d 522 Page 523]