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GEICO INDEMNITY, Plaintiff-Appellant, v. Joselyne C. ROTH, Kenneth Roth, Defendants-Respondents, et al., Defendants. (Appeal No. 2.)
Plaintiff commenced this action seeking a declaration that it has no duty to defend or indemnify defendant Scott C. Mayer, Jr. in the underlying personal injury action. Plaintiff initially moved for summary judgment seeking that declaration and, by the order in appeal No. 1, Supreme Court denied the motion without prejudice. Plaintiff thereafter made a second motion for the same relief, and we conclude that the court erred in denying plaintiff's second motion. We therefore dismiss the appeal from the order in appeal No. 1 as superseded by the order in appeal No. 2. “It is well established that a notice of cancellation is ineffective unless in strict compliance with the requirements of Vehicle and Traffic Law § 313(1)(a)” (Barile v. Kavanaugh, 67 N.Y.2d 392, 399, 502 N.Y.S.2d 977, 494 N.E.2d 82), and plaintiff met its initial burden by demonstrating its strict compliance with the statute, i.e., plaintiff demonstrated that it timely and validly cancelled the policy issued to Mayer based on his nonpayment of premiums (see generally § 313[1][a]; Badio v. Liberty Mut. Fire Ins. Co., 12 A.D.3d 229, 785 N.Y.S.2d 52; Matter of State Farm Mut. Auto. Ins. Co. v. Morales, 207 A.D.2d 546, 615 N.Y.S.2d 936; Matter of State Farm Mut. Auto. Ins. Co. v. Cherian, 202 A.D.2d 434, 435, 608 N.Y.S.2d 708). The burden then shifted to defendants-respondents (defendants) “to ‘establish noncompliance with [Vehicle and Traffic Law § 313(1)(a) ] as to form and procedure’ ” (Cherian, 202 A.D.2d at 435, 608 N.Y.S.2d 708, quoting Berrios v. Lumbermens Mut. Cas. Co., 162 A.D.2d 365, 557 N.Y.S.2d 32), and defendants failed to meet that burden. Plaintiff submitted “evidence of its office mailing practice sufficient to establish that the notice of cancellation had been mailed and presumably received” (Badio, 12 A.D.3d at 230, 785 N.Y.S.2d 52). The deposition testimony of Mayer that he did not recall receiving the notice is insufficient to rebut the presumption of receipt (see id. at 231, 785 N.Y.S.2d 52).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and judgment is granted in favor of plaintiff as follows:
It is ADJUDGED and DECLARED that plaintiff has no duty to defend or indemnify defendant Scott C. Mayer, Jr. in the underlying personal injury action.
MEMORANDUM:
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Decided: November 14, 2008
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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