Opinion
November 14, 1989
Appeal from the Supreme Court, New York County (Kenneth Shorter, J.).
In this article 78 proceeding, petitioner challenges respondent's predecessor's opinion and expulsion order which was allegedly mailed to petitioner on or about February 28, 1984. Petitioner did not receive the opinion and expulsion order and, after it had received notice from respondent of the consequences of the opinion and expulsion order, moved in November of 1987, by order to show cause, for, inter alia, a judgment annulling the opinion and expulsion order.
Respondent failed to meet its burden of demonstrating that the opinion and expulsion order was in fact put into the distributive process (Caprino v Nationwide Mut. Ins. Co., 34 A.D.2d 522). The record evinces a general carelessness by respondent which rebuts any presumption of a regular office practice of mail delivery (Nassau Ins. Co. v Murray, 46 N.Y.2d 828). Finally, the evidence presented by petitioner adequately rebuts any presumption of mailing and receipt. We have considered respondent's other claims and find them to be of no merit.
Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.