Tuesday, June 22, 2010


Unfortunately, at the hearing yesterday, the Administrative Law Judge reserved decision on the issue of timeliness of the Employer's Request For Hearing so now we are on for hearing number 3 on the issue of misconduct. This is unfortunate because now the Claimant has further hearings, the attorney fee will be greater, more delays, etc. But the law is clear on what is a timely request for a hearing notwithstanding the language in the Appeal Board rules and the case law should govern. Here are two more cases:

IN RE LURIE, 49 A.D.3d 932, 853 N.Y.S.2d 390 [3d Dept 2008]

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 31, 2006, which, upon reconsideration, adhered to its prior decisions ruling, among other things, that the employer's request for a hearing was untimely.

Jonathan B. Lurie, New York City, appellant pro se.

McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for Christopher D. White, respondent.

Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Before: Cardona, P.J., Peters, Spain, Rose and Lahtinen, JJ.

On November 23, 2004, the Department of Labor issued an initial determination holding claimant eligible to receive unemployment insurance benefits and the employer liable for contributions based on remuneration paid to claimant and others similarly situated. However, the employer did not request a hearing challenging the determination until March 3, 2005. Following a hearing on the issue, in two separate decisions, an Administrative Law Judge found that the hearing request was untimely as to the issue of claimant's eligibility and as to the issue of the employer's liability for contributions. These decisions were subsequently affirmed by the Unemployment Insurance Appeal Board. The employer successfully moved to reopen and, upon reconsideration, the Board adhered to its prior decisions, prompting these appeals.

Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination to request a hearing. Although the employer offered an excuse for its failure to request a hearing within the 30-day period following the November 23, 2004 determination, "the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no provision permitting an extension of time in which an employer can request a hearing" (Matter of Rago [Resource One, Inc. — Commissioner of Labor], 22 AD3d 1002, 1002 [2005]; see Matter of Schwartz [Durhon Oldham Natl. Income Life — Commissioner of Labor], 17 AD3d 903, 903-904 [2005]). Accordingly, we will not disturb the Board's decisions with respect to timeliness. In view of our disposition, we need not address the employer's remaining claims.

Ordered that the decisions are affirmed, without costs.

IN RE HARROUN, 44 A.D.3d 1220, 843 N.Y.S.2d 526 [3d Dept 2007]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 27, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Law Offices of David J. Sutton, P.C., Garden City (Brian C. Pascale of counsel), for appellant.

Before Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur.

An initial determination by the Commissioner of Labor finding claimant eligible to receive unemployment insurance benefits was mailed to the parties on August 23, 2005. Thereafter, by correspondence dated September 21, 2005 and filed with the local unemployment office on September 26, 2005, the employer requested a hearing to protest the determination. Following the hearing, the Administrative Law Judge overruled an objection by the Commissioner of Labor that the employer's hearing request was untimely, and upheld the initial determination of eligibility for benefits. The Unemployment Insurance Appeal Board reversed the Administrative Law Judge's decision, finding that claimant was disqualified from receiving benefits on the ground that she had been discharged from her employment for misconduct. Claimant now appeals.

We reverse. The 30-day period in which the employer had to request a hearing to contest the Commissioner of Labor's initial determination expired on September 22, 2005 (see Labor Law § 620 [2]). Although the employer's hearing request was dated and apparently mailed on September 21, 2005, it was not filed until September 26, 2005. The timeliness of such a request is measured by the date on which it was filed, and not on the date on which it was mailed (see Matter of Levine Commissioner of Labor], 253 AD2d 954, 955 [1998]). As such, the employer's request for a hearing, filed four days after the controlling 30-day limitations period elapsed, was time-barred (see id.).

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.

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