Rodriguez v. Wing
| Decision Date | 01 June 1998 |
| Citation | 673 N.Y.S.2d 734,251 A.D.2d 335 |
| Parties | , 1998 N.Y. Slip Op. 5271 In the Matter of Amada RODRIGUEZ, Petitioner, v. Brian WING, etc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Martin S. Needelman, Brooklyn (Paul J. Acinapura and Terry Herman, of counsel), for petitioner.
Dennis C. Vacco, Attorney-General, New York City (William Toran, of counsel), for respondent Brian Wing, Acting Commissioner of the New York State Department of Social Services.
Michael D. Hess, Corporation Counsel, New York City (Larry A. Sonnenshein and Stuart D. Smith, of counsel), for respondent Marva Hammons, Commissioner of the New York City Human Resources Administration.
Before ROSENBLATT, J.P., and RITTER, KRAUSMAN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Social Services, dated April 5, 1996, which, after a fair hearing, affirmed a determination of the New York City Human Resources Administration, dated February 3, 1996, to discontinue the petitioner's public assistance benefits on the ground that the petitioner, without good cause, failed to appear at a scheduled medical appointment for evaluation of her status as "temporarily unemployable".
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[4]; 7804[g]; see, Matter of Civil Serv. Empls. Assn. v. Town of Riverhead, 220 A.D.2d 411, 631 N.Y.S.2d 883; Matter of Rafman v. Brooklyn Coll. City Univ. of N.Y., 212 A.D.2d 795, 623 N.Y.S.2d 281).
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, 532 N.Y.S.2d 307; see also, Matter of T.E.A. Mar. Automotive Corp....
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...the addressee’ ” ( New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 A.D.3d at 547, 814 N.Y.S.2d 687, quoting Matter of Rodriguez v. Wing, 251 A.D.2d 335, 336, 673 N.Y.S.2d 734). “ ‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or p......
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...a rebuttable presumption that the petitioner received the T–3 letter by May 22, 2010 ( seeCPLR 2103[b][2]; Matter of Rodriguez v. Wing, 251 A.D.2d 335, 336, 673 N.Y.S.2d 734; see also Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829, 414 N.Y.S.2d 117, 386 N.E.2d 1085). Since the appellants dem......
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...were served on him in 2008 ( see Deutsche Bank Nat. Trust Co. v. Matos, 77 A.D.3d 606, 607, 908 N.Y.S.2d 732;Matter of Rodriguez v. Wing, 251 A.D.2d 335, 336, 673 N.Y.S.2d 734;cf. Segarra v. Evans, 48 A.D.3d 543, 849 N.Y.S.2d 892), and thus, his motions in 2011 to vacate those orders on the......
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...N.Y.S.2d 292, affd. 25 N.Y.3d 498, 14 N.Y.S.3d 283, 35 N.E.3d 451 [internal quotation marks omitted]; see Matter of Rodriguez v. Wing, 251 A.D.2d 335, 673 N.Y.S.2d 734 ). “ ‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure ......
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Table of cases
...14:150 Matter of Raymond J., 224 A.D.2d 337, 638 N.Y.S.2d 62 (1st Dept. 1996), § 5:90 TABLE OF CASES — C-23 Matter of Rodriguez v. Wing , 251 A.D.2d 335, 673 N.Y.S.2d 734 (2d Dept. 1998), § 8:20 Matter of Sanchez, 141 Misc.2d 1066, 535 N.Y.S.2d 937 (Fam. Ct., Bronx County, 1988), § 16:10 Ma......
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Character & habit
...defeat the presumption, the objecting party must demonstrate that routine oice procedure was not followed. Matter of Rodriguez v. Wing , 251 A.D.2d 335, 673 N.Y.S.2d 734 (2d Dept. 1998). Presumption created by routine mailing practices. Habit — no inference Phillips v. Kapl, Inc. , 20 A.D.3......
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Character & habit
...defeat the presumption, the objecting party must demonstrate that routine oice procedure was not followed. Matter of Rodriguez v. Wing , 251 A.D.2d 335, 673 N.Y.S.2d 734 (2d Dept. 1998). Presumption created by routine mailing practices. Habit — no inference Phillips v. Kapl, Inc. , 20 A.D.3......
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Character & habit
...defeat the presumption, the objecting party must demonstrate that routine office procedure was not followed. Matter of Rodriguez v. Wing, 251 A.D.2d 335, 673 N.Y.S.2d 734 (2d Dept. 1998). Presumption created by routine mailing practices. Habit — no inference Phillips v. Kapl, Inc., 20 A.D.3......