THE CONCURRING OPINION OF THE COURT OF APPEALS AND REBUTTING PRESUMPTION OF OFFICE MAILING BUSINESS PRACTICE - RPAPL 1304

 

CIT BANK NA v. Schiffman, 2021 NY Slip Op 1933 - NY: Court of Appeals March 30, 2021:

"FAHEY, J. (concurring):

The Second Circuit has certified to us a question regarding the showing required to rebut the presumption of receipt created by proof of a standard office mailing procedure (see 948 F3d 529, 538 [2d Cir 2020]). As the majority notes (majority op at 4 n), the Second Circuit has not asked this Court about the nature or quantum of proof sufficient to create the presumption in the first place. Nevertheless, the Second Circuit has invited us to "address any other issues of New York law that would assist [the Second Circuit] in determining whether CIT demonstrated compliance" with the RPAPL statutes at issue in this case (948 F3d at 538). Inasmuch as the proof necessary to rebut a presumption can be fully considered only in conjunction with the threshold issue of what proof gives rise to the presumption in the first instance, and because the presumption of mailing and receipt is an issue that arises in many areas of the law, I write separately to briefly address New York law on that threshold issue.

As the majority states, where a party seeks to establish receipt of a document through proof of a standard office mailing procedure rather than proof of actual mailing, the proponent must provide evidence of its routine office practice with respect to the "creation, addressing, and mailing of documents of that nature" (majority op at 6). If the proponent demonstrates "an established and regularly followed office procedure designed to insure that [documents] are properly addressed and mailed, a rebuttable presumption arises that the [documents] are received" (Matter of Gonzalez [Ross], 47 NY2d 922, 923 [1979], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]). We allow proof of a standard office procedure to substitute for proof of actual mailing for practical reasons, based on the assumption that "a person who regularly follows a strict routine in relation to a particular repetitive practice is likely to have followed that same strict routine at a specific date or time relevant to the litigation" (Galetta v Galetta, 21 NY3d 186, 198 [2013]; see Gardam & Son v Batterson, 198 NY 175, 178-180 [1910]). Upon adequate proof of mailing, the presumption of receipt, in turn, is "founded on the probability that the officers of the government will do their duty; and the usual course of business" (News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211, 214 [1931] [internal quotation marks omitted]).

For the presumption to arise, the standard office procedure "must be geared so as to ensure the likelihood that [the document] is always properly addressed and mailed" (Nassau Ins. Co., 46 NY2d at 830). The proof of that standard procedure generally should include a description of "the practices utilized by the [mailing party] at the time of the alleged mailing to ensure the accuracy of addresses, as well as office procedures relating to the delivery of mail to the post office" (Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169, 1170 [2014]).

In Gardam & Son, for example, this Court held that the proof of a standard office mailing procedure was deficient because, although the defendant testified that he always placed outgoing letters in a tray on his desk to be mailed, there was "no sufficient proof of a course of office practice, or of business, from which a presumption might be legally indulged, that the letters had been carried to the post office and that they, therefore, had been received in due course of the mails" (198 NY at 178). We held that

"[h]owever strong the convictions and the statements of the defendant as to the usual mailing of the letters placed on his desk, there was the gap in the proof, created by the failure to show that regular practice, or custom, of carrying them to the post, by some one charged with that duty, from which a presumption would naturally arise of these letters having been posted" (id. at 180; see also Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051-1052 [2d Dept 2015]; Rhulen Agency v Gramercy Brokerage, 106 AD2d 725, 726 [3d Dept 1984]).

By contrast, in Preferred Mut. Ins. Co., the proof was sufficient to raise a presumption of mailing and receipt where an affidavit described how the notices in question were generated, addressed, and placed in envelopes; how those envelopes were transported to the mail room, posted and sealed; and then how the mail was regularly delivered to the nearby post office (22 NY3d at 1170, affg 111 AD3d 1242, 1244 [4th Dept 2013]; see also Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [1st Dept 2004]; Jonathan Woodner Co. v Higgins, 179 AD2d 444, 445 [1st Dept 1992], lv denied 80 NY2d 756 [1992]).

Once the presumption arises, I agree with the majority that to rebut the presumption, the alleged recipient must deny receipt and point to a deviation from an aspect of the stated office procedure that would call into doubt whether the notice was properly prepared, addressed, or mailed (see majority op at 7-9).^[2] I further agree that minor, insignificant deviations from the stated procedure will not be sufficient to rebut the presumption, although what constitutes a minor deviation will depend upon the stated office practice described by the proponent (see id.). Of course, it would be in the proponent's interest in such situations to explain the reason for any deviation from the standard office practice in order to diminish doubt as to the reliability of the mailing and minimize the likelihood that a court will consider the deviation sufficient to rebut the presumption.

I am in full agreement with the majority's response to the Second Circuit's certified question regarding RPAPL 1306.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of this Court's Rules of Practice, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein. Opinion by Chief Judge DiFiore. Judges Rivera, Stein, Garcia and Wilson concur. Judge Fahey concurs in an opinion, in which Judges Stein and Wilson concur.

[1] The Second Circuit has not requested guidance concerning whether CIT's submissions created a presumption—a matter the Second Circuit addressed and resolved in CIT's favor, rejecting defendants' arguments to the contrary (CIT Bank N.A., 948 F 3d at 534).

[2] Alternatively, a recipient may rebut the presumption by denying receipt and showing that the routine office practice "was so careless that it would be unreasonable to assume that the notice was mailed" (Nassau Ins. Co., 46 NY2d at 830). Defendants did not make such a claim here."