Opinion
January 26, 1995
Appeal from the Supreme Court, Bronx County (Allen Murray Myers, J.H.O.).
As the Judicial Hearing Officer found, Nationwide failed to sufficiently demonstrate that it mailed a cancellation notice to plaintiffs. Both plaintiffs and ARCS Mortgage Inc. deny ever having received the cancellation notices that Nationwide allegedly mailed to them, and while Nationwide presented an employee/witness (with no personal knowledge of the instant alleged mailings) who testified as to the usual procedure for mailing such notices, such testimony did not establish that the procedures followed were "`geared so as to ensure the likelihood that a notice of cancellation [was] always properly addressed and mailed'" (Lumbermens Mut. Cas. Co. v. Comparato, 151 A.D.2d 265, 267; see also, Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 A.D.2d 226). We also note that Nationwide failed to present the testimony of the two personally involved employees who were specifically named on the mailing receipts who presumably could have provided firsthand information about the alleged mailings.
Finally, since this is not a case in which plaintiffs were cast in a defensive posture by legal steps Nationwide took in an effort to free itself from its policy obligations, but instead, a case in which plaintiffs affirmatively instituted this declaratory judgment action to settle its rights, plaintiff may not recover the expenses incurred in bringing said action. (Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21.)
Concur — Sullivan, J.P., Ellerin, Kupferman and Williams, JJ.