In re the Claim of Gallahue

Appellate Division of the Supreme Court of New York

In re the Claim of Gallahue

234 A.D.2d 881, 651 N.Y.S.2d 692, 1996 N.Y. App. Div. LEXIS 12862

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 26, 1996

StatusPublished

This text of 234 A.D.2d 881 (In re the Claim of Gallahue) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of Gallahue, 234 A.D.2d 881, 651 N.Y.S.2d 692, 1996 N.Y. App. Div. LEXIS 12862 (N.Y. Ct. App. 1996).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 10, 1995, which ruled that claimant was eligible for unemployment insurance benefits.

The Commissioner of Labor appeals from the Board’s ruling that claimant was eligible for unemployment insurance benefits for the 12-day period from June 28, 1995 through July 9, 1995, despite his failure to report for a scheduled PEER interview at his local unemployment insurance office on June 28, 1995 and his continued failure to contact that office until July 12, 1995. In so ruling, the Board credited claimant’s representations that he had not attended the interview because he did not receive the notice of interview, allegedly mailed June 8, 1995.

The Commissioner contends that the presumption of receipt mandates a decision in his favor. For the presumption of receipt to arise, however, it must be shown that the notice allegedly sent to claimant was properly mailed (see, Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833). The Commissioner’s proof consisted of an affidavit that on June 8, 1995, 9,181 notices were delivered to the mail room and a report from the mail room that 9,181 letters were mailed on that date. As these documents do not indicate the names or addresses to which the notices were mailed, they do not provide sufficient evidence to give rise to the presumption of receipt (see, Facarro v AARP, Inc., 205 AD2d 955, 956). This, together with the Board’s authority to resolve issues of fact and credibility, lead to the conclusion that the Board’s decision should not be disturbed.

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the decision is affirmed, without costs.

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—Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 10, 1995, which ruled that claimant was eligible for unemployment insurance benefits.

The Commissioner of Labor appeals from the Board’s ruling that claimant was eligible for unemployment insurance benefits for the 12-day period from June 28, 1995 through July 9, 1995, despite his failure to report for a scheduled PEER interview at his local unemployment insurance office on June 28, 1995 and his continued failure to contact that office until July 12, 1995. In so ruling, the Board credited claimant’s representations that he had not attended the interview because he did not receive the notice of interview, allegedly mailed June 8, 1995.

The Commissioner contends that the presumption of receipt mandates a decision in his favor. For the presumption of receipt to arise, however, it must be shown that the notice allegedly sent to claimant was properly mailed (see, Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833). The Commissioner’s proof consisted of an affidavit that on June 8, 1995, 9,181 notices were delivered to the mail room and a report from the mail room that 9,181 letters were mailed on that date. As these documents do not indicate the names or addresses to which the notices were mailed, they do not provide sufficient evidence to give rise to the presumption of receipt (see, Facarro v AARP, Inc., 205 AD2d 955, 956). This, together with the Board’s authority to resolve issues of fact and credibility, lead to the conclusion that the Board’s decision should not be disturbed.

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the decision is affirmed, without costs.

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234 A.D.2d 881, 651 N.Y.S.2d 692, 1996 N.Y. App. Div. LEXIS 12862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-gallahue-nyappdiv-1996.

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