Saturday, August 7, 2010

UNEMPLOYMENT INSURANCE - LATE REQUEST FOR HEARING

On the issue of a Claimant's timely request for a hearing, I reported on a June 27 Blog that Claimants must have a mental or physical disability as an excuse for any delay:

"IN MATTER OF WRIGHT v. COMM. OF LABOR, 2010 NY Slip Op 02054, 895 N.Y.S.2d 886 [3d Dept 3-18-2010]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 18, 2009, which ruled that claimant's request for a hearing request was untimely.

Dwayne Wright, Newark, New Jersey, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Bessie Bazile of counsel), for respondent.

Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ.

MEMORANDUM AND ORDER

After he was terminated from his position as an assistant manager with a shipping and receiving company, claimant applied for unemployment insurance benefits. The Department of Labor mailed an initial determination on October 3, 2008 denying his claim. Claimant waited until December 5, 2008 to request a hearing. At the hearing, the Commissioner of Labor objected to its timeliness. The Unemployment Insurance Appeal Board sustained the timeliness objection and upheld the initial determination. Claimant appeals.

We affirm. It is undisputed that claimant failed to request a hearing within 30 days of the date that the initial determination was mailed as required by Labor Law § 620 (1) (a) (see Matter of Lewis [Commissioner of Labor], 69 AD3d 1088 [2010]; Matter of Baird [Commissioner of Labor], 54 AD3d 466, 467 [2008]; Matter of Briggs [Commissioner of Labor], 52 AD3d 1081, 1082 [2008]). The proffered reason for his failure to make the request sooner was that he had difficulty focusing due to fact that he was moving from place to place. Inasmuch as this did not constitute a reasonable excuse for the delay (see Matter of Baird [Commissioner of Labor], 54 AD3d at 467) and claimant has not demonstrated that he suffered from a mental or physical disability that precluded him from requesting a hearing within the 30-day time period (see Matter of Martinez [Commissioner of Labor], 52 AD3d 1137, 1137 [2008]; Matter of Briggs [Commissioner of Labor], 52 AD3d at 1082), we find no reason to disturb the Board's decision."

Today, I received a favorable decision from the Appeals Board. In this matter, Claimant did not file a request for a hearing within 30 days of the issuance of the initial determination disqualifying the Claimant for misconduct. Claimant was terminated for alleged misconduct, criminal charges were filed but eventually dismissed, but as a result, Claimant became homeless and was diagnosed with symptoms of various mental illnesses, none of which was brought up at the hearing which was attended by Claimant, without counsel, and by the Employer. The DOL also objected based on timeliness and the ALJ issued an adverse determination against Claimant on the grounds of timeliness. I then came on and filed an appeal. The Appeals Board, after several months, has finally issued an opinion and remanded the case to the ALJ for a rehearing on all issues.

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