In the Matter of the Petition by

 SOL GERSCHITZ, a/k/a CHARLIE DAVIS,
 1925 Seagirt Blvd., 9H,
 Seagirt Beach, NY 11691-3751

 Closing of P. O. Box 13 at Cedarhurst, NY

 P.S. Docket No. 30/59

 06/27/88

 Qrant, Quentin E.  Chief Administrative Law Judge

Under date of April 15, 1988, Petitioner appealed from the closure of P. O. Box 13 at Cedarhurst, NY alleging among other things that he had not received a written determination of the postmaster stating the reasons for the closure and had not been advised of his rights under the law.

On May 9, 1988, Respondent filed a motion to dismiss the petition on the ground that the postmaster at Cedarhurst had issued a determination pursuant to DMM 951.83, dated February 29, 1988, which was placed in P. O. Box 13 on that date and that Petitioner had failed to take timely appeal therefrom. The motion also stated that an additional copy of the determination was mailed to Petitioner at his latest known address in Brooklyn, NY and that this copy was returned showing the addressee was not known. By my order dated May 13, 1988, Petitioner was given to May 23 to file objection to the motion to dismiss. His only response, dated May 16, 1988, was a demand that a hearing be held in Nassau County. On June 1, 1988, I issued another order stating that Petitioner's response to the motion was not adequate and giving him to June 24, 1988, to file a proper response to include specific responses to the assertions in the motion concerning his failure to pick up mail at P. O. Box 13 and his failure to update his current address information. In the same order, Respondent was directed to furnish Petitioner, by June 10, l988, copies of documents supporting its assertion of service of the closure determination on Petitioner. A certified mail receipt shows that Respondent received copies of such documents.

Respondent has failed to respond to the motion in accordance with my order of June 1, 1988.

FINDINGS OF FACT

The record on the motion shows that on February 29, 1988, the postmaster at Cedarhurst issued a determination to close P. O. Box 13 because of constant mail overflow condition of the box. The determination was placed in Box 13 on that date.

The determination detailed the overflow violations and notices thereof given to Mr. Gerschitz. It also referred to a visit by Mr. Gerschitz to the post office on February 17, 1988 when he was told by the Supervisor of Postal Operations that he must take a larger box or use caller service. It stated that Mr. Gerschitz agreed to come in the next day to take a larger box but failed to do so and that a few days later he came back, refused to rent the larger box and stated that he wanted to keep P. O. Box 13 or be given a refund. Enclosed with the determination to close the box was a money order for $5.50, the refund requested by Mr. Gerschitz.

Mr. Gerschitz failed to pick up the determination from his box and on March 16, 1988, it was mailed to him at the Brooklyn address he had given on his application for P. O. Box 13 in 1983 (3096 Brighton 6th St., Brooklyn, NY 11235). On April 16, l988, the determination and money order were returned by the Brooklyn postmaster to Cedarhurst because Mr. Gerschitz was unknown at the Brooklyn address he had given.

On or about April 15, 1988, Mr. Gerschitz appeared at the Cedarhurst post office, found that his P. O. Box 13 had been closed and on the same date mailed his petition initiating this proceeding. Petitioner's mailing address as set forth in the petition is 1925 Seagirt Blvd. 9H, Seagirt Beach, NY 11691. According to the record, Mr. Gerschitz failed to notify the Cedarhurst postmaster of this address change on P.S. Form 1093 as required under DMM 951.153.

Petitioner has not refuted any of the foregoing facts.

DECISION

Actual receipt by Petitioner of the closure determination until or or about April 15, 1988, was caused by his failure to pick up mail at P. O. Box 13 between February 29 and April 15 and by his failure to update his current address in accordance with the pertinent regulation. Under these circumstances, I find that there was constructive delivery of the determination to Petitioner not later than March 18, 1988, when delivery by the Brooklyn postmaster was attempted but thwarted by Petitioners failure to update his current address. On that basis, the petition should have been filed by April 7, 1988 (20 days). It was not placed in the mail until April 15. Although given generous opportunity, Petitioner has not provided excusable cause for such failure.

Accordingly, the motion is granted. The petition is dismissed.