Clark v. Columbian Mut. Life Ins. Co.

• Citation: 221 A.D.2d 227,633 N.Y.S.2d 311
• Parties: Carole CLARK, Plaintiff-Appellant, v. COLUMBIAN MUTUAL LIFE INSURANCE COMPANY, Defendant-Respondent.
• Decision Date: 16 November 1995
• Court: New York Supreme Court Appellate Division

Page 311

633 N.Y.S.2d 311

221 A.D.2d 227

Carole CLARK, Plaintiff-Appellant, v. COLUMBIAN MUTUAL LIFE INSURANCE COMPANY, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 16, 1995.

B.S. Light, for plaintiff-appellant.

K.P. Nolan, for defendant-respondent.

Before ELLERIN, J.P., and WALLACH, ROSS, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Leland G. DeGrasse, J.), entered October 20, 1994, which granted defendant's motion for summary judgment, is unanimously reversed, on the law, and the motion denied, with costs and disbursements payable to plaintiff. Appeal from the order of the same court and Justice, entered October 11, 1994, is unanimously dismissed as academic, without costs and disbursements payable to plaintiff.

Plaintiff's decedent, Paul Clark, died on May 30, 1991. The defendant insurer refused to pay plaintiff beneficiary the proceeds of his life insurance policy, claiming the policy had lapsed due to Mr. Clark's failure to pay the quarterly premium which was due on March 21, 1991. Defendant claimed it mailed Mr. Clark a Notice of Premium Due on February 20, 1991, and a Late Payment Notice on April 23, 1991. While the plaintiff denied that the decedent had received any notices as mandated by New York Insurance Law § 3211, the IAS court granted defendant's motion for summary judgment.

The IAS court based its decision on the deposition testimony of Mr. David Smith of defendant insurer who testified as to defendant's regular office practices and procedures for mailing notices. However, we find that these practices did not meet the standards required, i.e., "in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a notice of cancellation is always properly addressed and mailed" (Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 830, 414 N.Y.S.2d 117, 386 N.E.2d 1085).

Mr. Smith testified he had no contact with the Data Processing Department of defendant which generated the notices and had little knowledge as to how this was done. Further, prior to his preparation in the present lawsuit, he had never seen the computer print-out which listed the insureds who were supposed to be sent notices. He also testified that he did not know whether anyone checked the printed notices to ensure that they corresponded to the computer print-out. Further, he said that he did not know whether the envelopes he took to the post office were...