Tuesday, November 30, 2010

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another recent case which illustrates the need for Claimant's to offer a valid excuse for a late request:

"IN MATTER OF GANISIN v. COMMR. OF LABOR, 908 N.Y.S.2d 759 [3d Dept 10-7-2010]

Decided and Entered: October 7, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed June 23, 2009, which ruled that claimant's request for a hearing
was untimely.

Pope & Schrader, L.L.P., Binghamton (Kurt Schrader of counsel),
for appellant.

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

Before: Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

The Department of Labor, by initial determinations mailed September
18, 2008, found that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed. Additionally,
claimant was charged with a recoverable overpayment of $810 and his right
to receive future benefits was reduced by 44 days for having made willful
false statements. Claimant mailed his request for a hearing on January
12, 2009. The Commissioner of Labor objected to the timeliness of the
hearing request and, ultimately, the Unemployment Insurance Appeal Board
ruled that claimant's request was untimely, prompting this appeal.

We affirm. Pursuant to Labor Law § 620 (1) (a), a dissatisfied claimant
has 30 days in which to request a hearing from the date of the mailing of
the initial determination, unless physical or mental incapacity prevents
him or her from doing so (see Matter of Lewis [Commissioner of Labor],
69 AD3d 1088 [2010]; Matter of Baird [Commissioner of Labor], 54 AD3d 466,
467 [2008]). Here, claimant received the initial determinations shortly
after they were mailed and did not proffer a valid excuse for why he
failed to request a hearing until nearly four months later. As such, we
see no reason to disturb the Board's determination (see Matter of Wright
[Commissioner of Labor], 71 AD3d 1324 [2010]; Matter of Lewis
[Commissioner of Labor], 69 AD3d at 1088).

Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs."

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