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June 8, 2012

Serving notices by mail

Serving notices by mail
Cook v Village of Greene, 2012 NY Slip Op 04264, Appellate Division, Third Department

This decision by the Appellate Division sets out a number of points concerning effectively serving a notice to an individual to appear for a General Municipal Law §50-h when sending such a notice by mail.

The Village of Greene served a demand for examination by certified mail to the address verified by Wayne C. Cook in his notice of claim as his address. Cook failed to appear for the examination, but subsequently commenced an action against the Village and others. The Village moved to dismiss the action asserting, among other things, Cook's failure to attend the General Municipal Law §50-h examination.

The Appellate Division said that complying with a proper request for an examination pursuant to General Municipal Law §50-h is a condition precedent and failure to comply, absent exceptional circumstances, generally is a ground for dismissal of the action.

General Municipal Law §50-h [2] provides that certified mail is authorized manner of notifying a litigant not represented by an attorney to appear for an examination and the Village’s motion papers included a duly executed affidavit of service. The court noted that "A properly executed affidavit of service raises a presumption that a proper mailing occurred."

The Village, however, did not send the notice with a return receipt requested. Although the Appellate Division commented that a “return receipt” is not required by the statute as a general rule sending the notice "certified mail, return receipt requested" or "registered mail, return receipt requested," is viewed as appropriate and desirable.

Other provisions of law may authorize the delivery of certain notices by mail.

For example, Civil Service Law §76.1 provides that a §75 disciplinary determination is to be delivered “personally or by registered mail to the last known address of such person” while Education Law §3020-a provides that disciplinary charges shall be served on an educator “by certified or registered mail, return receipt requested or by personal delivery to the employee.”

The decision if posted on the Internet at:

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