Sunday, November 28, 2010

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

The courts have generally been extremely strict with this 30 day requirement for Claimants. For example, this case just came down about 10 days ago:

"IN MATTER OF DESANI v. COMMR. OF LABOR, 509336 [3d Dept 11-18-2010]
2010 NY Slip Op 08415 Decided and Entered: November 18, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed June 16, 2009, which ruled that claimant's request for a
hearing was untimely.

Elissa Desani, New York City, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.

Before: Peters, J.P., Spain, Stein, McCarthy and Garry, JJ.

MEMORANDUM AND ORDER

Claimant, a sales associate at a jewelry store, resigned her
position in June 2008 and thereafter applied for unemployment
insurance benefits. By initial determination mailed
on August 25, 2008, the Department of Labor found that claimant was
ineligible for benefits because she voluntarily left her employment
without good cause. The Department further charged claimant with a
recoverable overpayment of $460.75 and found that she had made false
statements to receive benefits and, therefore, reduced her right to
receive future benefits by eight days. Claimant, who was out of the
country from July 2008 until December 2008, did not request a
hearing until her return. The Commissioner of Labor objected to the
timeliness of her request and, following various proceedings, the
Unemployment Insurance Appeal Board ruled that claimant's request
was untimely. Claimant now appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), when dissatisfied
with an initial determination, a claimant must request a hearing
within 30 days unless physical or mental incapacity prevents him or
her from doing so (see Matter of Wright [Commissioner of
Labor], 71 AD3d 1324 [2010]; Matter of Lewis
[Commissioner of Labor], 69 AD3d 1088 [2010]). Here,
claimant admittedly waited nearly four months before requesting a
hearing and failed to proffer an acceptable excuse for the delay
(see Matter of Wright [Commissioner of Labor], 71 AD3d at 1324;
Matter of Briggs [Commissioner of Labor],
52 AD3d 1081, 1082 [2008]).

Peters, J.P., Spain, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs."

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