(concurring in part and dissenting in part). An allegation of nonreceipt made by the addressee of legal papers purportedly mailed pursuant to CPLR 2103 (subd [b], par 2), if true, logically raises two possibilities: either the papers were never mailed, or they were mailed but were lost in transit. Not remarkably, plaintiffs’ lawyer, after asserting that the conditional order of preclusion entered November 1, 1979, was never received, suggests that either the order was never mailed or that it was lost by the postal service.
Contrary to what is insinuated by the majority, plaintiffs never conceded that the order was, in fact, mailed. In opposition to defendant’s motion, plaintiffs’ attorney merely stated that “it appears in the moving papers” that the order was mailed. He did not, as did the attorney for the plaintiff in Vita v Heller (97 AD2d 464 [decided herewith]), accept that this was, in fact, so. Moreover, on appeal, plaintiffs’ counsel asserts that his position at Special Term was that, as he had not received the order, it had either not been mailed or it had been lost in the mail. Whether this statement refers only to the contentions made in the papers submitted to Special Term or also to contentions made at oral argument is unclear. In any event, defendant has never claimed that plaintiffs have *546conceded that the order was mailed. Furthermore, in the face of a categorical assertion that a legal document was not received, it makes little sense to say that it is nonetheless conceded that the letter enclosing the document was mailed, unless, as in Vita v Heller (supra), there is in the record an unequivocal statement to that effect.
Because of the dispute as to whether the order was mailed in the first place, it is not necessary, at least at this time, to confront the possible circumstances of the order being lost in the mail and whether such would provide a reasonable excuse, on the facts of this case, for failing to furnish a bill of particulars (see Vita v Heller, supra). If the order were not properly mailed, it was never served pursuant to CPLR 2103. In that event, the 30-day time period in which plaintiffs were to respond, according to the very terms of the order, never began to run. “If the time in which to serve a bill [of particulars] is measured [in the conditional order] * * * from the time the resisting party is served with a copy of the order, the time will not begin to run until then and the delay in service will thus keep extending the time to serve the bill” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3042:11, p 690; emphasis added). Assuming that a copy of the order was not mailed, an issue which, in my view, requires a hearing for resolution, it ill behooves defendant to complain about plaintiffs’ alleged failure to abide by the procedural requirements of the law.
The majority would deny plaintiffs the opportunity to litigate at a hearing the question of whether the order was mailed because defendant has proffered an affidavit of service. Several cases are cited in support of the proposition that an addressee’s denial of receipt is insufficient to rebut an inference of proper mailing which can be drawn from defendant’s affidavit of service (see, e.g., De Forte v Doctors Hosp. of Staten Is., 66 AD2d 792). This proposition has its roots in the Court of Appeals holding in Trusts & Guar. Co. v Barnhardt (270 NY 350; see Fisch, New York Evidence [2d ed], § 1139, p 658, n 58).
Barnhardt (supra) involved a Canadian statute which provided that a notary’s certificate showing the dishonor of a promissory note and the mailing of the notice of protest *547was “prima facie evidence of presentation and dishonour, and also of service of notice” (Trusts & Guar. Co. v Barnhardt, supra, p 353, quoting from Revised Statutes of Canada, 1927, p 280). The Canadian statute further provided that a notice of dishonour, properly mailed, was deemed received even if lost by the postal service. The Court of Appeals, interpreting the Canadian statute, held that when the sender made out his prima facie case of mailing, through a notary’s certificate, evidence of nonreceipt presented by the addressee, standing alone, did not create an issue of fact requiring a hearing or trial.
Barnhardt (supra) has been criticized by no less an authority than Dean Wigmore: “[D]id not the opinion fail to distinguish two things, (1) the conclusiveness of the mailing and (2) the conclusiveness of the certificate? The statute virtually made the mailing the sufficient act, as a rule of substantive law, regardless of receipt by the addressee; hence his nonreceipt was immaterial. But the fact of mailing remained open to proof and the notary’s certificate was here not conclusive * * * The opinion concedes that ‘the falsity of the certificate may be shown ... by any competent evidence,’ and that ‘evidence that notice was not received would undoubtedly be competent.’ Now the only available evidence would ordinarily be the testimony of the addressee and his staff, which was here offered for that purpose. The precise ruling is that such testimony is admissible but not sufficient to go to the jury, but reason given is the above § 104 of the statute. That section, however, assumes the fact of mailing and its rule follows only when mailing is proved. But here it was the mailing that was disputed, and the statute did not yet apply. Hence, the reason given for the ruling is inadequate”. (9 Wigmore, Evidence [Chadbourn rev], p 568, n 5.) It also appears that Barnhardt (supra) runs counter to the rule followed in most of the jurisdictions in this country (see 31A CJS, Evidence, § 136, subd c, and cases cited therein; see, e.g., Simpson v Jefferson Std. Life Ins. Co., 465 F2d 1320). Whatever the merit of Barnhardt (supra), it is clearly distinguishable from the case at bar. The cases which indiscriminately apply the Barnhardt (supra) holding to varying statutory contexts do not make allowance for the rather unique statute there involved.
*548Barnhardt (supra) is based upon the language of the Canadian statute which sets forth a rule that, in cases under the statute, an affidavit of mailing is prima facie evidence of service. A New York statute, former section 92 of the Insurance Law, contained similar language to that found in the Canadian statute with respect to proof of mailing. It provided that “[t]he affidavit of any officer, clerk, or agent of the corporation * * * that the notice required by this section has been duly addressed and mailed * .* * shall be presumptive evidence that such notice has been duly given”. Comparing this statute to the one in Barnhardt (supra), the First Department followed Barnhardt (supra) and held that proof of nonreceipt of the notice required by former section 92 of the Insurance Law was insufficient to rebut the “presumptive” effect to be given the affidavit of mailing (Goeller v Equitable Life Assur. Soc. of United States, 251 App Div 371).
On the other hand, various courts have distinguished Barnhardt (supra) in situations where there was no legislation making an affidavit of mailing prima facie or presumptive proof thereof (see Noftell v Gair Realty Corp., 32 AD2d 839; Teichberg v Blair & Co., 63 Misc 2d 1073; De Feo v Merchant, 115 Misc 2d 286; cf. Maurer v John Hancock Mut. Life Ins. Co., 163 Misc 723, revd on other grounds 164 Misc 717). In fact, our decision in Noftell v Gair Realty Corp. (supra) is, for all intents and purposes, on all fours with this case. On September 16, 1955, the defendant served a demand for a bill of particulars on the plaintiff’s attorney. On September 13, 1956, an order of preclusion was entered on plaintiff’s consent requiring the plaintiff to serve a bill within 60 days after service of a copy of said order upon the plaintiff’s attorney. According to an affidavit of service from one of the defendant’s attorneys the order was sent by mail on September 13, 1956. The bill of particulars was not provided until late 1957 and was allegedly rejected by the defendant on the ground of lateness. Subsequently, as the case slowly progressed through the courts, the plaintiff moved for, among other things, leave to amend his bill of particulars. This court, in considering the plaintiff’s motion, found it essential to determine first the status of the initial bill of particulars *549and the effect of the order of preclusion. In particular, the plaintiff denied ever receiving a copy of the order, although he acknowledged entering into a stipulation extending his time to serve the bill. This court held that whether a copy of the conditional order of preclusion was mailed so as to trigger the 60-day period was an unresolved question of fact. In pertinent part we noted: “Disputed questions of fact not passed upon by the Special Term were presented with respect to defendant’s alleged failure to serve upon plaintiff, by mail, a copy of the time-conditioned preclusion order dated September 13,1956, and also plaintiff’s admitted failure to serve the initial bill of particulars until approximately one year after expiration of a stipulation extending the time for service as directed in the preclusion order. Before considering whether an amended bill should be permitted to be served in this case, Special Term must determine if plaintiff has a meritorious excuse for failure to serve the initial bill in accordance with the terms of the preclusion order (cf. D’Antonio v. Fitzgerald, 11 A D 2d 804). Relevant disputed questions of fact that must be passed upon, by taking testimony or receiving other evidence, are (1) whether defendant failed to serve a copy of the preclusion order with notice of entry upon plaintiff by mail as alleged by plaintiff and denied by defendant (cf. Trusts & Guar. Co. v. Barnhardt, 270 N.Y. 350; New York Cent. Employees v. Commercial Credit Co., 13 Misc 2d 874; Seglin Const. Co. v. State of New York, 22 N.Y.S.2d 94, affd. 262 App. Div. 782, mot. for rearg. den. 262 App. Div. 797)”.
My colleagues in the majority attempt to distinguish Noftell (supra) by noting that “the record in Noftell (supra) indicates that the attorney for the plaintiff who moved to amend the bill of particulars, was not the same attorney, nor did he have offices at the same address, as the attorney upon whom the preclusion order was served, as evidenced by the affidavit of service by mail of September 13, 1956”. In fact, the plaintiff in Noftell (supra) did not change attorneys, but utilized three attorneys with offices at different addresses. The fact that the affidavit of mailing stated that the copy of the preclusion order was mailed to one of the plaintiff’s attorneys, whereas another moved to *550amend the bill of particulars, was incidental to our holding in that case. Nowhere is it mentioned in the decision. Furthermore, such could not be relevant, since, generally, a client is bound by notice to or knowledge of his attorney (Farr v Newman, 14 NY2d 183). If, in fact, the order was mailed to and received by one of his attorneys, the plaintiff could not raise an issue as to any lack of notice, either to him or to his other attorneys.
Noftell (supra) is simply not distinguishable from the case at bar, nor, for that matter, are the cases primarily relied on by the majority, i.e., De Forte v Doctors Hosp. of Staten Is. (66 AD2d 792, supra) and Barton v La Pointe (67 AD2d 760). It is inescapable that Noftell (supra) is inconsistent with De Forte (supra) and Barton (supra) and either Noftell (supra) or the others must be correct. Resolution of the controversy is not furthered by attempting to distinguish the indistinguishable.
The mailing statutes relevant in Noftell (supra) were sections 163-a and 164 of the Civil Practice Act and subdivision 1 of rule 20 of the Rules of Civil Practice. Their more modern analogue is CPLR 2103 (subd [b], par 2), allowing for service of legal papers on a party’s attorney, “by mailing the paper to him at the address designated by him for that purpose or, if none is designated, at his last known address; service by mail shall be complete upon deposit of the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States post office department within the state”. This provision says nothing about an affidavit of service being prima facie or presumptive evidence of mailing. In fact, affidavits of service are not even mentioned. While the provision does say that service will be deemed complete upon mailing, thereby obliging the sender no further, the statute is silent on the subject of how the mailing itself is to be proved.
That service is deemed complete on mailing, pursuant to CPLR 2103, is a reflection of the long-standing evidentiary rule that a letter properly mailed is presumed to have been received (News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211). The presumption of receipt, arising upon proof of proper mailing, is clearly not the same thing as an *551alleged presumption or inference of mailing which purportedly arises because an affidavit of service is submitted to the court. The latter notion is a rule created by statute, such as was present in the Barnhardt case (supra). Absent such a statute, there is no presumption of mailing (Uni-Serv Corp. v Frede, 50 Misc 2d 823, affd 53 Misc 2d 644; see, also, Tisch Family Foundation v Texas Nat. Petroleum Co., 326 F Supp 1128). The former concept, that of the presumption of delivery, is predicated on a trust in the regularity of the postal service. As a logical matter the obverse of this presumption is equally valid: if a letter were not received, then it should be presumed not to have been properly mailed (see Teichberg v Blair & Co., 63 Misc 2d 1073, 1077-1078, supra). Thus, when it is alleged that a letter was not received, a factual issue arises as to whether it was mailed (Hastings v Brooklyn Life Ins. Co., 138 NY 473; Caprino v Nationwide Mut. Ins. Co., 34 AD2d 522; Westwitt Realty Corp. v Burger, 212 App Div 622; Simpson v Jefferson Std. Life Ins. Co., 465 F2d 1320, supra). Absent a legislative statement to the contrary, which would presumably be based on policy grounds, there is no reason to give more credence to an affidavit of mailing than to an affidavit of nonreceipt. The existence of such contrary affidavits create a controverted material issue of fact requiring a hearing or trial (Capra v Lumbermens Mut. Cas. Co., 31 NY2d 760; Curry v Mackenzie, 239 NY 267; LeFevre v Cole, 83 AD2d 992; Empire Nat. Bank v Judal Constr. of N. Y., 61 AD2d 789).
The majority maintains that a “mere” denial of receipt is inadequate to raise a question of fact as to mailing. In the first instance, what else may a person who never received a paper, purportedly mailed, say but, “I never received it”? Should the burden initially be placed on the addressee to assert nonmailing as well as nonreceipt? This court has previously held that the burden of proving mailing, where it is at issue, is on the sender (Ruina v Commercial Travelers Mut. Acc. Assn., 272 App Div 1028, affd 297 NY 824). What proof would be required if that burden should, instead, fall upon an innocent party who did not receive the disputed paper? Should he suffer a substantial judgment or lose a valuable right if, in fact, it was never mailed, as *552initially appears by the fact of nonreceipt? Assuming the addressee is a single practitioner not surrounded by a coterie of clerks, secretaries, and assistants who can innundate the record with affidavits of office procedure to convince the court initially, sans hearing, that the document was never delivered to him, does he suffer defeat because he simply asserts the truth in the initial foray: “I never received it”? Where, without a hearing, can the addressee get any further competent evidence to establish that there was not, in fact, proper mailing? Almost necessarily, he must do so through cross-examination of the purported sender. Traditionally, a hearing before the court has been deemed the appropriate vehicle for resolution of disputed issues of fact where substantial rights of parties are involved. An exception should not be made here.
Before the presumption of receipt is invoked, adequate proof of mailing must be adduced (Capra v Lumbermens Mut. Cas. Co., 43 AD2d 986; Caprino v Nationwide Mut. Ins. Co., 34 AD2d 522, supra). Such proof, if unchallenged, may be in the form of an affidavit or, if challenged, then, in the form of testimony from the sender to the effect that the letter in question was properly addressed, stamped and posted, or it may be in the form of evidence of an office practice and procedure followed in the regular course of business, in this case, by the office of defendant’s attorneys, which shows that the letter in question was duly stamped, addressed and mailed (Nassau Ins. Co. v Murray, 46 NY2d 828; Anzalone v State Farm Mut. Ins. Co., 92 AD2d 238). Thus, at least in the absence of a statute providing that an affidavit of mailing is prima facie or presumptive proof of such mailing, when receipt is denied, there must be a hearing where the sender is put to the task of establishing a proper mailing (Hastings v Brooklyn Life Ins. Co., 138 NY 473, supra; Capra v Lumbermens Mut. Cas. Co., 31 NY2d 760, supra; Caprino v Nationwide Mut. Ins. Co., 34 AD2d 522, supra). The addressee will then be afforded an opportunity for cross-examination wherein he could attempt, for example, to show that the “routine office practice was not followed or was so careless that it would be unreasonable to assume that the [letter] was mailed” (Nassau Ins. Co. v Murray, 46 NY2d 828, 830, supra; see, also, Anzalone v State Farm Mut. Ins. Co., supra).
*553Because the majority’s holding runs counter to a long line of cases which favor disposition concerning a disputed mailing by way of a hearing or at trial, wherein the sender is put to his proof, and because the majority’s decision appears to misapprehend the rule set down in Barnhardt (supra), I respectfully dissent. The question of whether or not the preclusion order was mailed should be resolved at a hearing. Accordingly, I vote to reverse the order insofar as appealed from and to remit the matter for a hearing in accordance herewith.
Gulotta and Brown, JJ., concur in the opinion of Mangano, J.; Gibbons, J., concurs to the extent of voting to reverse the order insofar as appealed from, but dissents to the extent of voting to remit the matter to the Supreme Court, Kings County, for a hearing, with an opinion, in which Lazer, J. P., concurs.
Order of the Supreme Court, Kings County, dated May 22, 1981, reversed insofar as appealed from, on the law, with costs, and defendant’s motion for summary judgment dismissing the complaint granted unconditionally.