101 West 77th Street Co. v. State of New York Division of Housing & Community Renewal

— Order, Supreme Court, New York County (Kenneth Shorter, J.), entered December 1, 1987, which denied respondent-appellant’s cross motion to dismiss the petition upon the ground that petitioner failed to effect proper service of the order to show cause and failed to obtain jurisdiction over respondent, is unanimously affirmed, without costs. Judgment and order (one paper), Supreme Court, New York County (Kenneth Shorter, J.), entered July 7, 1989, which granted the CPLR article 78 petition to the extent of vacating the two challenged orders of respondent’s predecessor rent agency, the New York City Conciliation and Appeals Board, and remanded the matter to respondent for a hearing de nova, is unanimously affirmed, without costs. 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 295 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 AD2d 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 NY2d 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.