Franco v. Wing

—Decision after hearing, dated February 3, 1998, issued by the designee of respondent Brian J. Wing, Commissioner of the New York State Office of Temporary and Disability Assistance (the OTDA), determining that petitioner’s public assistance benefits should be terminated for failure to demonstrate that 243 she had good cause for her failure to keep a required appointment with the New York City Human Resources Administration (the HRA), unanimously annulled, on the law, without costs, the petition pursuant to CPLR article 78 granted (that proceeding transferred to this Court by order of the Supreme Court, New York County [Bruce Allen, J.], entered on or about October 8, 1998), and the matter remanded to the State respondent for a hearing in accordance with the decision herein, including the question of whether petitioner received actual notice of the appointment. The OTDA determination cancelling petitioner’s public assistance benefits is not supported by substantial evidence on the sparse record before us. Respondents’ purported proof that the notice of Eligibility Verification Review was sent to petitioner is undated and gives no indication as to when it might have been sent, and the HRA failed to satisfy its burden of offering proof that it duly followed its routine procedures relative to addressing, posting and mailing the notice to petitioner. Consequently, the rebuttable presumption that petitioner received the notice did not arise (see, Matter of Francis v Wing, 263 AD2d 432). However, petitioner may not have received the notice due to her failure, over a six-month period, to apprise respondents of her inability to receive mail on a regular basis or to provide them with a reliable, alternative mailing address. Under these circumstances, we remand to the State respondent. Concur — Rosenberger, J. P., Williams, Rubin, Saxe and Buckley, JJ. [As amended by unpublished order entered June 29, 2000.]