Friday, April 16, 2010

UNEMPLOYMENT INSURANCE - PRESUMPTION OF MAILING

I had a Unemployment Hearing appeal last summer/fall 2009 where the issue was whether a notice of appeal, sent by the Employer, was timely sent. The Appeals Board never received it and a hearing that lasted several phones by telephone took place. This case may have been discussed in an earlier blog (although I argued there was a presumption of mailing and the Employer could not refute it with actual time and mailing records, the Employer prevailed with the Appeals Board by presenting an affidavit of service - and then the Employer, after reviewing the hearing transcript, withdrew it's appeal). In doing some research on another matter, today I found the following on the presumption of mailing which was decided after the hearing I had - I note the portion which I emphasize in italics:

"EXPRESSWAY VIL., INC. v. DENMAN, 2009 NY Slip Op 29518 (Niagara County Court.
Decided December 23, 2009)

The appellant is represented by counsel, who properly filed the notice of appeal, perfected that appeal, submitted the Record on Appeal and tendered his written appellate brief. As a result, this Court opened an appeal file and sent its customary initial letter to the appellee advising her of the procedures and time deadlines involved. That letter, mailed on September 16, 2009, went to "Shirley Denman, Lot No. 44, Expressway Village, 2740 Service Road, Niagara Falls, NY 14304," the last address noted in the court's file. Sent by ordinary mail, it creates a legal presumption of receipt, since it was never returned to the court as undeliverable. (See Spangenberg v. Chaloupka, 229 AD2d 482, 645 NYS2d 514 [2nd Dept 1996].)"

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