Liquidation of Union Indemnity Ins. v. Superintendent of Ins. , 633 N.Y.S.2d 21 ( 1995 )

—Order and judgment (one paper), Supreme Court, New York County (Ira Gammerman, J.), entered January 6, 1995, confirming the report of the Referee disallowing the claim against the Liquidator, unanimously affirmed, without costs. Cross appeal by the Liquidator unanimously dismissed as academic.

The Referee properly construed the performance bond in finding that claimant was required to provide the surety with notice of the subcontractor’s default, and, contrary to claimant’s contention, the Second Department decisions in Babylon Assocs. v County of Suffolk (101 AD2d 207, 217-218) and Menorah Nursing Home v Zukov (153 AD2d 13, 21-22) do not suggest to the contrary.

The Referee’s determination that notice had not in fact been provided in this case was supported by the record (see, Kardanis v Velis, 90 AD2d 727). The mailing presumption did not apply in the absence of testimony by a person with knowledge of claimant’s regular office practice. The testimony of claimant’s vice president that his secretary usually did what she was told was insufficient for this purpose.

In view of the foregoing, we do not reach the issue raised on the Liquidator’s cross-appeal with respect to the claimant’s entitlement to interest. Concur—Sullivan, J. P., Rosenberger, Ross, Asch and Nardelli, JJ.