Fowler v. Marks

Determination unanimously confirmed without costs and petition dismissed. Memorandum: We conclude that the petition must be dismissed as time-barred (see, CPLR 217). The record establishes that, on January 22, 1996, respondent mailed petitioner a letter and an order suspending his pistol permit. Those documents advised petitioner that his permit had been suspended based on his involvement in an incident on December 23, 1995, which had been reported to County Court by the Town of Greece Police Department. Petitioner was further advised that, if he did not request a hearing to contest the suspension within 10 days from receipt of the documents, his pistol permit would be automatically revoked. The order was served on petitioner by mail and he therefore had until February 7, 1996 to request a hearing (see, CPLR 2103 [c]). Because petitioner did not request a hearing by February 7, the determination revoking his pistol permit became final and binding as of that date. The commencement of this proceeding on February 25, 1997 is therefore untimely (see, CPLR 217; Matter of Lehner v Humphreys, 156 AD2d 867, 868). The fact that respondent did not issue a formal order revoking petitioner’s pistol permit until October 1996 does not alter that result (see, Matter of Lehner v Humphreys, supra, at 868). We reject the contention of petitioner that the determination must be annulled because he never received respondent’s January 22, 1996 suspension order and letter. Respondent established that the suspension order and letter were duly mailed to 929 petitioner at his home address. The contention of petitioner that he did not receive the documents is insufficient to rebut the presumption that a proper mailing occurred (see, Engel v Lichterman, 62 NY2d 943; Morgan v Long Beach Entertainment Complex, 125 AD2d 378). (Original Proceeding Pursuant to CPLR art 78.) Present—Green, J. P., Pine, Lawton, Callahan and Fallon, JJ.