In Matter of Lassana Jabateh, DTA No. 824176 (N.Y.S. Div. of Tax App., July 7, 2011), the Department sought to dismiss a petition for hearing on the grounds that it was untimely, since it had been filed 118 days after a conciliation order was issued, outside the required 90-day period. While the Department was able to prove that the conciliation order was properly delivered to the post office for delivery by certified mail, was returned as unclaimed, and re-mailed by ordinary mail, the taxpayer established that a fire had occurred in his apartment shortly before the original mailing date and that the Red Cross had requested disaster-related relief. Thus, a question of fact was raised concerning whether, and when, the taxpayer had been unable to receive mail at his apartment as a result of the fire. The Department’s motion to dismiss was denied and the action was allowed to proceed, although the Administrative Law Judge noted that the question could be considered again later in the proceeding on a full record if the Department again raised the timeliness issue.