Liriano v. Eveready Insurance Company
| Decision Date | 04 August 2009 |
| Docket Number | 2008-09672.,2008-11587. |
| Citation | 884 N.Y.S.2d 248,65 A.D.3d 524,2009 NY Slip Op 06122 |
| Parties | RAMON LIRIANO, Respondent, v. EVEREADY INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the defendant is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court improperly granted the plaintiff's motion for summary judgment on the complaint. The plaintiff submitted a process server's affidavit of service indicating that the defendant was served by mail on August 13, 2007, with a default judgment against its insured in the underlying action, which constituted prima facie evidence of proper service (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Matter of de Sanchez, 57 AD3d 452, 454 [2008]). In response, the defendant came forward with a sworn denial of receipt and an affidavit of an employee with personal knowledge regarding the defendant's regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims. That affidavit indicated that the defendant did not receive the judgment in the mail, and instead first learned of it on March 13, 2008, promptly issuing a disclaimer only six days later. Under the circumstances of this case, the defendant's submissions sufficed to raise a triable issue of fact regarding the service of the judgment, and the question of whether the defendant's disclaimer of coverage was timely must await the resolution of that issue (see e.g. Matter of TNT...
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...review of her personal records, cannot be characterized as a "simple denial" (see Liriano v Eveready Ins. Co. , 65 AD3d 524, 524–525, 884 N.Y.S.2d 248 [2d Dept 2009 [defendant rebutted presumption of mailing by presenting affidavit containing "sworn denial of receipt" and showing "defendant......
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Liriano v. Eveready Ins. Co.
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