
    In the Matter of Charles F. Comer, Petitioner, v James L. LaRocca, as Commissioner of New York State Department of Transportation, et al., Respondents.
   Memorandum: Petitioner appeals from a determination of the Commissioner of the New York State Department of Transportation affirming a qualified abandonment of Sample Corners Road in the Town of West Sparta, Livingston County, pursuant to Highway Law § 205 (2). That statute provides alternative criteria for qualified abandonment depending on whether the road in question is more or less than two rods wide. The test applied here was that specified for a road more than two rods in width. The only proof of width was that Sample Corners Road was at most 20 feet wide (a rod is 16.5 feet) and that it was too narrow to admit a snowplow. The Commissioner nevertheless affirmed a finding that the road was presumed to be at least three rods wide, relying on Highway Law § 189. This reliance was misplaced. We are not required to decide whether in the absence of any proof of actual width that section could be said to supply a presumption and thereby meet the town’s burden of proof (see, Matter of Shawangunk Holdings v Superintendent of Highways of Town of Shawangunk, 101 AD2d 905, 907, appeal dismissed 63 NY2d 773). Even if it did, any such presumption would be rebuttable and disappears as soon as sufficient proof to the contrary is introduced (see, Richardson, Evidence § 58 [Prince 10th ed]).

The record lacks substantial evidence to support the Commissioner’s determination (see, 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176). (Article 78 proceeding transferred by order of Supreme Court, Livingston County, Houston, J.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.  