Opinion
February 22, 1994
Appeal from the Supreme Court, Queens County, Kassoff, J., Groh, J.
Ordered that the judgment is reversed, on the law, with costs, and the application is granted.
When, as here, the issue concerns cancellation of an automotive insurance policy issued under an assigned risk plan for failure to pay the premiums, the insurer, in this case State Farm Mutual Automobile Insurance Company (hereinafter State Farm), must prove the mailing of both a final bill and a notice of cancellation (see, Davis v. Walsh, 153 A.D.2d 549; Eveready Ins. Co. v Mitchell, 133 A.D.2d 210; Matter of Home Indem. Co. v. Scricca, 147 A.D.2d 697; Rules of N Y Automobile Insurance Plan §§ 14-18). The final bill, which is a condition precedent to payment being due and owing, must be mailed at least 15 days prior to the mailing of the notice of cancellation (see, Eveready Ins. Co. v Mitchell, supra; Matter of Home Indem. Co. v. Scricca, supra; Rules of N Y Automobile Insurance Plan § 14 [E] [2]).
Although State Farm presented evidence sufficient to create a presumption that the notice of cancellation was properly mailed (see, Nassau Ins. Co. v. Murray, 46 N.Y.2d 828; Federal Ins. Co. v. Kimbrough, 116 A.D.2d 692; Anzalone v. State Farm Mut. Ins. Co., 92 A.D.2d 238), it presented insufficient evidence that the final bill was mailed (see, Matter of Home Indem. Co. v. Scricca, supra). Thus, State Farm failed to meet its burden of proving that the insurance policy in question was timely and properly cancelled (see, Viuker v. Allstate Ins. Co., 70 A.D.2d 295).
In view of the forgoing, the State Farm policy covering the offending vehicle was in effect at the time of the accident, and the respondent Xiomara Moctezuma is stayed from seeking arbitration. Sullivan, J.P., Santucci, Goldstein and Florio, JJ., concur.