Opinion
June 1, 1998
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
Contrary to the petitioner's contention, the instant proceeding was properly transferred to this Court pursuant to CPLR 7804 (g) because there is a question raised as to whether the respondents' determination, "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence" (CPLR 7803; 7804 [g]; see, Matter of Civil Serv. Empls. Assn. v. Town of Riverhead, 220 A.D.2d 411; Matter of Rafman v. Brooklyn Coll., 212 A.D.2d 795).
The petitioner failed to appear at a scheduled medical appointment to evaluate her status as "temporarily unemployable" despite having been sent notice of this appointment. Thereafter, the petitioner was sent notice of the local agency's intent to discontinue her benefits based upon her failure to keep the appointment. At a conference and subsequent fair hearing, the agency produced evidence that the original notice advising the petitioner of the medical examination appointment was mailed. The petitioner, however, conclusorily stated that she had not received the appointment letter. Thereafter, the petitioner's benefits were discontinued.
"As a general rule of evidence, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee" ( Rosa v. Board of Examiners, 143 A.D.2d 351, 352; see also, Matter of T.E.A. Mar. Automotive Corp. v. Scaduto, 181 A.D.2d 776, 779). Here, the affidavits of the agency personnel created a presumption of delivery ( see, Matter of T.E.A. Mar. Automotive Corp. v. Scaduto, supra; Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829; Matter of Rapuzzi v. City of New York, Civ. Serv. Commn., 161 A.D.2d 715, 715-716). Further, the conclusory assertions of the petitioner of lack of receipt were insufficient to rebut the presumption of mailing ( see, Orlando v. Corning Inc., 213 A.D.2d 464, 465; see also, Matter of Rapuzzi v. City of New York, Civ. Serv. Commn., 161 A.D.2d 715, 715-716, supra; Ramos v. DeMond, 127 A.D.2d 751, 752-753). Accordingly, the determination was supported by substantial evidence ( see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180).
The petitioner's remaining contentions are without merit.
Rosenblatt, J. P., Ritter, Krausman and McGinity, JJ., concur.