In re Chapman ( 1988 )

Casey, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 28, 1986, which dismissed claimant’s appeal from the decision of an Administrative Law Judge as untimely.

A hearing was conducted before the Unemployment Insuranee Appeal Board limited to the issue of whether claimant’s appeal from a decision of an Administrative Law Judge (hereinafter ALJ) adverse to her was timely (see, Labor Law § 621 [1]). Claimant admitted receiving the decision on August 22, 1986, at her parents’ home in Ontario County. At the time, claimant was attending college and residing in Monroe County, returning to her parents’ home every month or so. Her notice of appeal was dated September 9, 1986 and received by the Department of Labor on September 11, 1986. Labor Law § 621 (1) requires an appeal within 20 days of mailing. The only proof in the record concerning the date of mailing is the stamp on the face of the ALJ’s decision, which states: "Decision Mailed and Duly Filed in the Department of Labor on August 14, 1986”.

In our view, this evidence supplied a rational basis for the Board’s finding of untimeliness. Claimant’s concession that she received the decision on or about August 22, 1986 relieved the Department from the obligation of offering proof regarding the practices and procedures involved in mailing ALJ decisions, since such proof is necessary only to establish the presumption of receipt (see, Matter of Gonzalez [Ross], 47 NY2d 922, 923), an issue rendered academic here by claimant’s concession. Based upon claimant’s testimony that she provided a mailing address which was different than her place of residence, claimant’s receipt of the decision on August 22, 1986 is not inconsistent with the mailing date of August 14, 1986 stamped on the decision.

For these reasons, the decision of the Board that claimant’s notice of appeal (dated Sept. 9, 1986) exceeded the 20-day limitation from the date of mailing (Aug. 14, 1986) and was, therefore, untimely is rational and should be affirmed.

Decision affirmed, without costs. Kane, J. P., Casey and Harvey, JJ., concur.