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THE ISSUANCE DATE OF A DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DECISION BY A HEARING OFFICER IS THE DATE THE DECISION IS MAILED; THE 60-DAY APPEAL PERIOD STARTS RUNNING ON THE DATE OF MAILING; HERE DOCCS DID NOT PROVE WHEN THE DECISION WAS MAILED AND THEREFORE FAILED TO PROVE THE APPEAL WAS UNTIMELY; THE DATE STAMPED BY A POSTAGE METER IS NOT NECESSARILY THE DATE OF MAILING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent Department of Corrections and Community Supervision (DOCCS) did not demonstrate petitioner’s appeal of the suspension of her visiting rights was untimely. Petitioner is the fiancee of an incarcerated person and the suspension of visiting rights was related to an incident during one of the visits. The fiancee attempted to appeal the suspension.  DOCCS argued that the appeal was untimely and Supreme Court agreed. The Third Department determined DOCCS failed to prove the appeal was untimely because it did not prove when the decision suspending visitation was mailed. Mailing triggers the 60-day period for appeal. The envelope in which the decision was mailed was stamped by a postage meter on January 8, 2024, but that does not prove it was mailed on January 8. Petitioner’s appeal was received by DOCCS on March 13, 2024. Without proof of the exact date the decision was mailed, DOCCS did not demonstrate the 60-day appeal period had expired on March 13:

… [P]etitioner’s 60-day appeal window began to run on the date the decision was mailed. * * *

… [T]he issuance date of the Hearing Officer’s decision is the day it was placed in the mail. … [R]espondents’ submissions in support of their motion to dismiss do not reveal this date. Although the record contains a copy of the envelope in which the decision was mailed, it shows only the date the envelope was put through a postage meter, which “is not the equivalent of a postmark date” … . Respondents have not proffered an affidavit of mailing to establish the date it was placed in the mail. As such, respondents did not meet their burden of establishing that claimant’s appeal was untimely … . Matter of Moses v New York State Dept. of Corr. & Community Supervision, 2026 NY Slip Op 03485, Third Dept 6-4-26

Practice Point: If an appeal period is triggered by when a decision is mailed, the party attempting to prove the appeal was untimely must prove precisely when the decision was mailed. The date stamped by a postage meter is not proof of the the precise date of mailing.

 

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