i think the couple of key issues here there's a lot of little issues that all add up to the bottom line as to the efficacy of the notices i think and i'd like to just raise one thing it's received prior to july twentieth two thousand and nine interestingly enough in a i g's brief they go through this and they keep one mistake age sixty the notice expressly lists the july twentieth two thousand and nine the network prior age twelve required by july twentieth two thousand and you know what difference isn't ok because prior to this two issues here and why that's an it's a big difference when i tell you what has to be prior to july twentieth that means july nineteenth you know now difference does it make they never sent a payment ever that's correct well they never received the notice but i believe the standard as applied by the courts in new york is that there is strict compliance and that we can get into but this is even more than that we're talking about it also says has to be received by interesting land and in fact it means it has to be mailed by as we discussed in our brief and now we're going to refute that the law is that that has to be mailed by so let's talk about much july twentieth as a monday in order for that to have been written received by they would have had a mail it off five six days before it was is maytee if it's two months before that's correct but they are now still giving them people have to put their money together people have all the reasons and there is a strict compliance the idea is there's a public policy in the state against having policies lobsang default and we discuss those cases it's a public policy but this statute is about giving notice so that a policy will not lapse because the person doesn't know that the premium is due rector ana so wh why would a difference of a day or two or three be material well i believe it because i believe it's really comes out to four or five days because of not only is it the prior issue but it's also the issue of the mailing issue it says receive versus mail by one they could have mailed it on the twenty that's what where the on the twenty of the instead there were asked whether it was material and i take it your point is your court of appeals isn't concerned with the let me just take one step the i don't i don't understand what you give away your case that way your argument wouldn't be any better your argument would be identical because your argument is new york requires strict compliance and there wasn't so whether the letter was received the day before three days before a month before or a day late doesn't affect your argument which is the new york requires group compliance or a truck hundred percent now let's talk about one of the issues of the witnesses i think is a very very important issue your honor the witness we have here is a guy from pitney bowes and let's take the history and it's in the record and they come forward with their rule twenty six and they don't  rect and they list and they do not list any witness from the mailing center whatsoever and when they come on motions for summary judge we come forward and say under the rules of this court if you have a list the witness you can give an affidavit from witness you don't have listed and you've listed no one who knows what happen in the mailing so the court allows the deposition to be taken they say we want to do a new witness the court says you have to pay the actual attorney's fees for my firm to go down there to texas to take the step a session to get attorneys fees costs etc and who are they give they give a witness who has never been at the facility you know it's interesting in their brief they say it's witness was not physically station facility on the day the notice they keep on saying the extent that when he won one and one in their brief the promise he was never at that facility he worked at a different facility he had cannot he can tell you all about the procedures of the company we agree and that's why we specifically the person has to know the procedure that took place not facility he never was there it worked at three other facilities therefore that's a major issue they have no witness who is as ever testif the procedure that took place in the facility that sent and what do you well the burden is upon them to show the mailing and the burden is specifically that you didn't ask to depose anyone who we did we asked them to depose a corporate designee that's what happened what happen is they came for the rule twenty six and we said and they made a motion and they add to the white why isn't it a reasonable inference that if these are the procedures throughout then this is the procedure in this particular office but the concept is you want to know that that procedure was fun i could have the greatest procedures in five offices i don't understand that and no one knows when the procedure was followed in a particular case that's why evidence like this is accepted so you don't get you never get somebody to say yeah on as with respect to this letter this is what we did because no one knows what happened to that letter but you have to know the procedure was generally  difference i think the burden is set but forth by the new york courts and the appellate courts in new york is the person i'm in the luna case was exactly this the van store started working at that facility a month after the letter was sent out this case that he worked at three million facilities were later i worked in houston it was the same as the other two places and they followed it but he has no idea what was he found a copy a copy the actual notice and you have no other affidavit from somebody else who said yeah we had we actually retained a copy of the grace write well that's a computer notice that it doesn't say what's mailing the issuance of letters is one thing the mailing is the other and there is no witness and they were given the opportunity the judge said get someone who knows that facility why is it that they didn't bring somebody when the judge gave them that opportunity and gave us cost to get that witness why is it that they did not even mention and bring someone to work at that facility has to be a reason for that have a couple of minutes you reserved you want to use it now or do you want to co please the court the morning honors my name is dave mckellar represent the american general life insurance company american general asking this court to affirm the lower court's ruling because there is unequivocal evidence that this notice was mailed the notice was in strict compliance with section thirty two eleven even if it wasn't in strict compliance any noncompliance was immaterial when it was rick compliance for a minute you say it was in strict compliance are you saying that so long as it provides a date when the payment  due that's good enough even if it's the wrong date as long as it says that has to be received before a date that is beyond the sixty one day grace period absolutely what  day grace period that sixty one day grace period began on may eighteenth any payment received before july twentieth two thousand and nine would be timely so thereby informing the insured of the policyholder the payment had to be received before july twentieth two thousand and nine absolutely tells the insurer when payment has to be received with no human adversary knows that if it was wrong it could have been received as late as july twenty third or twenty fourth or something like that with all due respect to my esteemed ever sorry he's incorrect there is not a single new york court that has ever imposed the requirements of section twenty five or the mil box rule on section thirty two eleven i've searched high and low and the only court that i can find that's ever addressed the issue in the context of thirty two eleven refused to apply the requirements of the general construction law section twenty five to thirty two eleven if you look at section twenty five the general construction  all it says is that if you make the payment by the next business day it will be deemed as if it were made within the time required by the contract head we said this had to be received after the grace period by july twentieth or that had to be mailed by july twentieth then we would have essentially been bought a find the contract itself no court has imposed the requirements of section twenty five and section thirty two eleven and we don't believe that there's any reason for the second circuit to be the first one to do it not i believe that our brief clearly sets forth the very language of the notice provision itself and regardless of what the brief says the notice provision says what it says in thirty two eleven says what it says but when you argue it did you tell us then it was july twenty third you talk about progress we talked about prior to our if you look at i can't remember when i was prior to the same ones as on july twenty two is not the same i with a situation where where the notice never told the the insured at all what the consequence my you so you think flint says we have various degrees of noncompliance i think that's what and what flint says and flint does not overturn a google what flint says is that if the due date is in our instance july twentieth then you need to say on or before but the grace period in this policy has the due date falling prior to july twentieth and the only way you reach july twentieth is if you apply the general construction law of section twenty five which no new york court has ever done if you and the district co mcdougall mcdougall certainly wasn't overturned by flint what flint said is that the owner before language is important to too if that due date is in our instance july twentieth but the sixty one days expired before july twentieth so by informing them that if we receive your payment before july twentieth we complied with the statutory requirements and again you only make a finding that july twentieth is the due date if you impose on thirty two eleven the requirements of such a twenty five stand home own insurance company you operate in fifty states and understandably they have different insurance so it's difficult but you have a big general counsel's  so one of the things they do on the right policies in new york is first see what does new york fire everybody has that's right so new york says you got with how you have to spell out your notice in order to have a policy lapse and you don't follow it so simple to follow it and you don't your honor and i think we do i think that we use the language or equivalent language to indicate  word that is non conforming and which changes it by a day now a day isn't much i grant you and if the issue was is a breach material you have i think very strong case but if the issue is  but by your honor this does not change it by a day the lower courts say even if it did change it by a day that change would be immaterial we can certainly get signs of a material right if we were talking about the materiality of a breach but it wouldn't be non conforming if new york requires strict conformity our notice does not change it by a day or notice does not change it by a date the only way you reach a finding out is prior to not move it up one day because sixty one days expires on the eighteenth not on the twentieth so if they complied with the language of the policy and they made a premium payment before july twentieth then they are apply section twenty five and then it's deemed to have been made before july twentieth then it's deemed to have the made in a timely fashion so when do you say it had to be well either mailed a receipt what's the the eighteenth so you sent out a notice that says what it has to be received july nineteenth before july twentieth before and the twenty are i'm giving you the benefit of as late as that is the end of the period before the one here is the ninet only apart from new york policy you're saying that would have been too late no i thought you just said had we received the eighty well the the nineteenth was a sunday so by operation of law it moves to the twenty possibly prejudice them if we gave them more time well i think i would agree with you no prejudice no materiality you not to persuade me of any of those i'm with you on all those my question what i'm trying to get you is whether you are out of strict compliance with new york law and your honor i don't i believe the answer is no and let me just add one one addition to the argument there even if they win they lose because under new york law they are required to continue to make the premium payments that we asked for and they never made the premium payments thirty two eleven does not absolve them of the responsibility to make premium payments  simply says that american general or any insurance company can't lapse a life insurance policy within one year of default here there is no question that they had notice either because of the may eighteenth notice or because of the august fourth notice that additional premium was necessary and they never tender that edition a period within one year and that if they are right that you didn't literally come form with them with what new york cars then you're lapse was a valid lapse and it never lasts even if it wasn't a valid lapse it doesn't absolve them of making the payment and that's the berkshire selman first is ashkenazy case in that case the court said even if the even if there's a change in the terms even if the notice is improper you still have to make the premium payments and because an ashkenazi and also in brown versus travelers because an ash can as he did john hancock had received a payment with india in the new extended grace period the court found that but it even says by happenstance it's fortuitous that it made they made the painting found that the premium obligations had been filled but they never ever fulfilled the premium obligations here they say they had notice of the amount due they never paid that amount due within the one year and as a consequence even under the language of thirty two eleven even if the notice is not proper under thirty two eleven the policy is still terminated thank you your for when you these supposed to understand that an insurance company first says we want twenty two thousand and then two weeks later they say we want fifteen tells believing that aside because it was insurance companies sometimes are entitled to several payments and if they send you one letter the so please pay this amount by this date and then they send you another letter that says you know this by this date maybe you owe them both i believe in the context is confusing believing that it's like they send that second payment and they get this letter back that says with that and what they could have done is at the policy number on it they could have person who voted for it and i gets it they know exactly what's happening they get the check back let's address this issue they then within a week and a half they say they get that letter and they immediately for a place to check with a fifteen thousand dollars check they  thousand in compliance with it with anything that says noncompliance but we know ready that they will not take any payment they didn't take the fifteen they said your policy is lapse so they think they've told us that it's already lapse we will take payment we tried to make payment and in our pleading specifically it says we are ready and willing to make for pink so therefore we have offered to pay we've painting out our check rejected what more can we do send another check that they're an object an account we send a check and they tell you it's laps a check for twenty five thousand one hundred thousand a million dollars they're going to reject it because they told us it slops they didn't say it's not enough they said not enough would be one thing so therefore we've made the tender of payment and therefore that is not i believe that does