Opinion
114634/09.
February 9, 2010.
Decision, Order and Judgment
Petitioner brings this Article 78 petition, seeking a reversal and expungement of respondent's determination to deny him a special rigger license upon respondent's finding that petitioner lacks good moral character and committed a fraud or falsification in the application process. Respondent cross-moves for dismissal of the petition on the grounds that proceeding is time barred.
Petitioner's application for a special rigger license was submitted in or about May 2008. In order for respondent to verify petitioner's experience and references, the application process spanned about eleven months, and included correspondence between respondent's investigator and petitioner. Several mailings from respondent to petitioner were made during the application process. The final determination, in the form of a letter to respondent dated April 8, 2009, sets forth that the petitioner was deemed "not qualified" for a special rigger license for the following reasons: candidate does not meet experience requirements; character; fraud; background; and falsification of official documents for license. A review of the County Clerk's records indicates that petitioner did not commence this proceeding to challenge respondent's final determination until on or about October 19, 2009.
An Article 78 proceeding must be commenced within four (4) months after the determination to be reviewed becomes final. C.P.L.R. § 217(1). "An administrative determination is final and binding so as to commence the running of the Statute of Limitations when the petitioner has received notice of the determination and is aggrieved by it." In re Cauldwest Realty Corp. v. New York, 160 A.D.2d 489, 490 (1st Dep't 1990), citing In re Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832 (1983).
In support of its cross motion, respondent provides an affidavit from Beverly Session-Kelly, who sets forth that she is the Director for respondent's Investigations Unit (the "Unit"). She submits the affidavit to describe the regular office practice and procedure of the Unit with respect to the mailing of notices sent to applicants who were found not qualified for a subject license. According to Ms. Session-Kelly, the Unit conducts investigations of candidates for certain licenses, including special rigger licenses, and may refuse to certify a candidate who does not meet the requirements. When the applicant is found to be not qualified, a notice of personnel action, or the final determination, is generated by the Unit. The final determination states the reasons for the applicant's disqualification and is addressed to the applicant's address of record. The address of record is maintained on the Unit's database. If the candidate has provided the Unit with an updated address, the Unit will enter the more recent address into the database. The candidate is responsible for notifying respondent in writing of any address change which occurs after filing the application for the license. Once the final determination is generated, it is mailed within three to four business days. During this period, the Deputy Director proofreads the final determination and verifies that it is properly addressed. Upon verifying the proper address, the final determination is assigned to an employee of the Unit's clerical staff for mailing. The employee seals the final determination in an envelope and places the envelop in a central mail "outbox" for the Unit. The envelope in which the final determination is sealed contains a clear window through which the applicant's address is visible. A staff member collects the mail in the outbox twice daily and delivers it to respondent's mail room where postage is applied. The mail is delivered at the end of each day to a United States Post Office depository. The Unit has a protocol for returned mail. The investigator assigned to the case must determine the reason for the return. If the mail was returned as undeliverable, the investigator will re-check the address on the database and see if the candidate has provided respondent with an updated address. If an alternative address is obtained, the returned mail will be sent to that address. If the investigator is unable to forward the returned mail to an alternative address, the returned mail is placed and maintained in the case file.
Ms. Session-Kelly sets forth that petitioner submitted an application for a special rigger license, and was found not qualified. A final determination was generated on Wednesday, April 8, 2009, and mailed to him no later than Tuesday, April 14, 2009. The final determination, a copy of which is annexed to Ms. Session-Kelly's affidavit, was mailed to the address provided by petitioner on his application, a copy of which is also annexed to the affidavit. Ms. Session-Kelly reports that the file maintained by the Unit contains no document that reflects that the final determination mailed to petitioner was returned.
In response, petitioner denies that he received the final determination. He states that he lives only with his wife and he brings the mail from the mailbox to the apartment. Had the document been delivered, he would have seen it. Petitioner sets forth that the document was never delivered to his mail box and was never received by him. He first saw the final determination when it was presented to him by his attorney on January 13, 2010.
Proof of a regular mailing practice gives rise to a rebuttable presumption of delivery. Badio v. Liberty Mut. Fire Ins. Co., 12 A.D.3d 229, 229-30 (1st Dep't 2004). "In order for the presumption of receipt to arise 'office practice must be geared so as to ensure the likelihood that a notice of cancellation is always properly addressed and mailed.'"Id. at 229-30, quoting Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 830 (1978). The "testimony of an employee who possessed personal knowledge of the office mailing practice, including how the mail was picked up and counted, and how the names and addresses on each item were confirmed," has been held to constitute "proof of regular office practice and procedure obviat[ing] the necessity of producing a witness with personal knowledge of the actual mailing[.]" Badio, 12 A.D.3d at 230. If respondent meets its burden of proof that the mailing was mailed to petitioner and presumed received, the burden shifts to petitioner to rebut the presumption of receipt. Id. Denial of receipt alone is insufficient to rebut the presumption. Id.;Nassau Ins. Co., 46 N. Y.2d at 829-30. "In addition to a claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed."Id. at 830, quoted in Badio, 12 A.D.3d at 230.
In this case, respondent has demonstrated a presumption of receipt of the final determination by a detailed affidavit of an employee who possesses personal knowledge of the office mailing practice, which includes procedures for verifying the address, physically mailing the document, and dealing with returned items. Petitioner has failed to rebut the presumption with anything other than a claim that he never received the document. There has been no showing that the routine office practice was not followed or that respondent's practice is so careless that it is unreasonable to assume that notice was mailed. Petitioner's averment that respondent must show more than "general mailing practice by ordinary mail" is unsupported by case law.
Taking into account the Unit's mailing practice and adding five days pursuant to C.P.L.R. Rules 2103(b)(2) and 2103(c), the administrative determination became final and binding on or about April 19, 2009. Petitioner commenced this proceeding on or about October 19, 2009, approximately six (6) months after the determination became final and binding on petitioner. This proceeding is time barred because it was brought beyond the four (4) month statute of limitations within which an Article 78 proceeding must be commenced.
The petition is denied as time barred. The cross-motion is granted. The proceeding is dismissed. The clerk of the court is directed to enter judgment accordingly
This constitutes the decision, order, and judgment of the court.