Rhubarb Fashions, Ltd. v. Liberty Mutual Insurance

Order, Supreme Court, New York County (Robert White, J.), entered on or about December 12, 1991, which denied defendant’s motion for summary judgment, unanimously affirmed, with costs. Defendant argues that the testimony concerning the manner in which the original and renewal policies were assembled entitles it to a presumption that the entire insurance policy, including a one year limitation period, was delivered to the insured. We disagree. The testimony in question established only that the policies were fully assembled and then delivered to the sales representative for ultimate delivery to the insured, and, since the sales representative did not testify, there was no proof as to the method of delivery employed for the specific policies at issue, nor any proof to establish a routine office practice on the part of the sales representative (compare, 31-33 Lenox Ave. Wine & Liq. Corp. v Brueckner, 185 AD2d 762). The mere possibility of receipt of the original policy, as admitted by plaintiff’s treasurer, does not establish otherwise, the burden being on defendant to establish its defense of a shortened statute of limitations. Concur—Milonas, J. P., Ellerin, Kupferman and Kassal, JJ.