___ AD3d ___, 2015 NY Slip Op 02194 [1st Dept., 2015]
A properly-executed affidavit of service by mail raises a presumption that a proper mailing occurred, which is not overcome by a mere denial of receipt (Kihl v. Pfeffer, 94 N.Y.2d 118 ). This is true even of entities which generate large volumes of documents served by mail. The presumption can be rebutted where the proof casts doubt on whether or not a particular document was, in fact, mailed as attested by the affidavit or, as here, even whether or not the document was ever generated in the first place.
The documents in question were default orders against the petitioner, allegedly generated by the Environmental Control Board regarding violation notices. Under the New York City Charter, the petitioner had 30 days from the receipt of the orders in which to request a new hearing for “good cause.” According to the ECB, that time had passed. Petitioner denied receiving the orders, and commenced this Article 78 proceeding. On the return of the Article 78 petition, the ECB was unable to produce copies of the notices and orders supposedly mailed to the petitioner. The trial court found that the presumption of mailing raised by the affidavits, and this finding was affirmed by the Appellate Division.
Interestingly, the trial court did make an error on another point, when it ordered ECB to grant petitioner another hearing. Since ECB had never actually considered whether petitioner had “good cause” for its default, the trial court could not make that determination for it. Rather, the matter had to be remanded to ECB for a determination of whether the defaults could be vacated for “good cause.”