Friday, August 6, 2010


There is one recent case from the Appellate Division, 3rd Department that discusses the issue of a default by Employer:

"IN RE KHAN, 66 A.D.3d 1098, 886 N.Y.S.2d 776 [3d Dept 2009]

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 25, 2008, which ruled that Mirage Limousine Service, Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others
similarly situated.

Law Offices of G. Oliver Koppell & Associates, New York City (G. Oliver Koppell of counsel), for appellant.

McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for Mohamed M. Khan, respondent.

Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.

Before: Mercure, J.P., Lahtinen, McCarthy and Garry, JJ., concur.

Kane, J.

Mirage Limousine Service, Inc. operates a black car limousine business that provides its clients transportation to and from prescribed destinations. In separate decisions, the Unemployment Insurance Appeal Board determined that an employer-employee relationship existed between Mirage and claimant, a limousine driver, and others similarly situated and assessed Mirage additional unemployment insurance contributions. Mirage now appeals both decisions.

We affirm. Initially, Mirage contends that it was deprived of its due process rights by the Administrative Law Judge's denial of its request for an adjournment of the initial hearing on this matter in order to obtain counsel. We disagree. Although notice of the hearing date was given only a week before the hearing, Mirage was aware of its need for counsel when it requested the hearing months earlier. A review of the record indicates that Mirage was afforded the opportunity, both prior to and at the start of the hearing, to either withdraw from the hearing and obtain counsel, with the understanding that a default judgment would be entered against it, or to continue with the hearing without representation. It was further explained that if Mirage withdrew its appearance from the hearing, it would then be able to move to reopen the matter once counsel had been obtained, and a new hearing would be held if the motion were granted. Mirage then decided to proceed with the hearing without counsel. Under these circumstances, we cannot conclude that Mirage was deprived
of due process (see Matter of Crisalli [Commissioner of Labor], 279 AD2d 925, 925 [2001]; Matter of Palmer [Rescue Mission Alliance of Syracuse — Commissioner of Labor], 273 AD2d 525, 525-526 [2000]).


What is important in this decision, for both Employers and Claimants, is that the time to get an attorney is when you request a hearing, and do not wait until you get the notice of the hearing date. Of course, in this matter, the court notes that the Employer could have defaulted and moved to reopen - but here the Employer chose to proceed without counsel.

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