Opinion
February 17, 1987
Appeal from the Supreme Court, Orange County (Ritter, J.).
Ordered that, on the plaintiffs' appeal, the judgment is affirmed, with costs payable by the plaintiffs to the defendants-respondents the Aetna Casualty Surety Company and William S. Carroll Agency, Inc.; and it is further,
Ordered that the appeal by the defendants Martin T. DeMond, Sr., Zenobia C. DeMond, Martin T. DeMond, Jr., and Cuddeback, Onofry Schadt, is dismissed, without costs or disbursements, as abandoned.
Under the homeowner's insurance policy issued by the Aetna Casualty Surety Company (hereinafter Aetna) to Martin T. DeMond, Sr., and Zenobia C. DeMond, Aetna was required to give them five days' written notice prior to cancellation. The trial court properly concluded that Aetna satisfied its burden of establishing that the notice of cancellation which stated that it was mailed on June 19, 1979, was in fact delivered to the insureds shortly thereafter, well in advance of the alleged fire at the subject premises on or about April 22, 1980. The testimony by Ralph Potter, Aetna's employee in charge of the billing and collection of premiums on "direct billed" homeowner's policies such as the DeMonds', clearly set forth the regular practice followed by his office in June 1979 for producing and sending out notices of cancellation. This procedure, which involved inter alia, the checking by a post-office employee that all the names and addresses of policyholders on a mailing list provided by Aetna appeared on the envelopes containing the notices of cancellation, ensured the likelihood that a notice of cancellation would always be properly addressed and mailed. This proof raised the presumption that the notice of cancellation sent to the DeMonds was in fact received by them shortly after June 19, 1979 (see, Nassau Ins. Co. v Murray, 46 N.Y.2d 828, 829-830; Matter of Lumbermens Mut. Cas. Co. v. Medina, 114 A.D.2d 959, 960-961). The plaintiffs and the insureds failed to rebut this presumption by presenting evidence that this procedure was either not followed or carelessly followed in the instant case (see, Nassau Ins. Co. v. Murray, supra, at 830).
The trial court further correctly exercised its discretion under CPLR 3126 by denying the plaintiffs' application to exclude from evidence two documents which Aetna should have provided pursuant to a pretrial discovery request. The court correctly concluded that since this failure to disclose was not "wilfull", but had rather been the result of a form of negligent "law office and claims adjuster failure", exclusion of the documents in question from evidence pursuant to CPLR 3126 (2) was unwarranted (see, Donner v. 50 Tom Corp., 99 A.D.2d 504; Plainview Assocs. v Miconics Indus., 90 A.D.2d 825). Moreover, the trial court's offer to the plaintiffs' counsel of an adjournment to allow him to undertake any investigative actions he wished with regard to these previously undisclosed documents, and to then have a further opportunity to cross-examine Mr. Potter, abated any unfair prejudicial impact which their introduction into evidence may have had. Lawrence, J.P., Kunzeman, Spatt and Sullivan, JJ., concur.