Wednesday, December 1, 2010

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is another case of interest:

"IN MATTER OF ADJEKUM v. COMMR. OF LABOR, 907 N.Y.S.2d 724 [3d Dept 9-30-2010]

Decided and Entered: September 30, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed April 7, 2009, which ruled that claimant's request for a hearing
was untimely.

Robert Adjekum, Perth Amboy, New Jersey, appellant pro se.

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

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

MEMORANDUM AND ORDER

The Department of Labor issued a notice of determination dated October
9, 2008 disqualifying claimant from receiving unemployment insurance
benefits on the ground that he lost his employment due to misconduct.
Claimant responded by letter dated November 23, 2008 protesting the
notice of determination. Following a hearing, an Administrative Law Judge
sustained the Commissioner of Labor's timeliness objection, and that
decision was upheld by the Unemployment Insurance Appeal Board. Claimant
appeals.

We affirm. "Labor Law § 620 (1) (a) provides that a claimant aggrieved
by a notice of determination has 30 days from the date of the mailing of
such notice to request a hearing, unless the claimant suffers from a
physical or mental condition preventing a timely request, in which case
the period may be extended" (Matter of Walker [Commissioner of Labor],
23 AD3d 752, 753 [2005] [citation omitted]; see Matter of Pelli
[Commissioner of Labor], 35 AD3d 930 [2006]). Here, it is undisputed that
claimant did not request a hearing within the requisite 30-day period
despite the instructions on the back of the notice of determination.
While he offered a variety of excuses for his omission, including that he
was out of the country, suffered from high blood pressure and was
experiencing financial difficulties, claimant failed to submit compelling
proof demonstrating that he suffered from a physical or mental condition
that prevented him from complying with the statute. Accordingly, the
Board properly concluded that the hearing request was untimely, and the
merits of his disqualification are not properly before this Court
(see Matter of McCarthy [Commissioner of Labor], 39 AD3d 993, 993-994
[2007]).

Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs."

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