Cruz v. Wing

276 A.D.2d 307, 714 N.Y.S.2d 210, 2000 N.Y. App. Div. LEXIS 10542

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 2000
• Status: Published

Opinion

Determination of respondent State Department of Social Services dated December 9, 1996, which, after a fair hearing, discontinued petitioner’s public assistance benefits, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, Bronx County [Yvonne Gonzalez, J.], entered on or about August 3, 1999) dismissed, without costs.

Petitioner’s public assistance benefits were properly discontinued upon substantial evidence that petitioner received the notice from respondent local social services agency to report for an initial intake appointment to the Work Experience Program, and willfully and without good cause failed to so report (see, Matter of Tessler v Hammons, 251 AD2d 63). The agency’s affidavits established that it followed a regular office procedure designed to insure that such notices were properly addressed and mailed, raising a presumption of receipt thereof by petitioner (see, Matter of Gonzalez [Ross], 47 NY2d 922; Nassau Ins. Co. v Murray, 46 NY2d 828; Matter of Dowling v Holland, 245 AD2d 167, 169). Petitioner’s attempt to overcome the presumption by denying receipt of the notice, offering proof that his mailbox lock was broken and pointing out that he responded to other notices sent to him by respondents raised issues of credibility that are beyond this Court’s review (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443-444). We have considered and rejected petitioner’s other arguments. Concur— Rosenberger, J. P., Nardelli, Williams, Mazzarelli and Wallach, JJ.