Friday, December 3, 2010

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is another case illustrating the strictness of the 30 day requirement:

"IN RE WRIGHT, 71 A.D.3d 1324, 895 N.Y.S.2d 886 [3d Dept 2010]

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

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.

Ordered that the decision is affirmed, without costs."

No comments:

Post a Comment