Saturday, December 4, 2010

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

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

"IN RE LEWIS, 69 A.D.3d 1088, 892 N.Y.S.2d 664 [3d Dept 2010]

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed December 1, 2008, which ruled that claimant's request for a hearing
was untimely.

Martin Lewis, New York City, appellant pro se.

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

Before: Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ.,
concur.

By initial determination mailed on June 18, 2008, the Department of
Labor found that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed. In addition,
the Department found that he had been overpaid $171 and that he had made
false statements in order to obtain benefits and, therefore, reduced his
right to receive further benefits by 16 days. Claimant did not request a
hearing until August 9, 2008. The Commissioner of Labor objected to the
timeliness of the request and, following various proceedings, the
Unemployment Insurance Appeal Board ruled that claimant's request was
untimely, prompting this appeal.

We affirm. A claimant who is dissatisfied with an initial determination
must request a hearing within 30 days of the date that it is mailed,
unless physical or mental incapacity prevents him or her from doing so
(see Labor Law § 620 [1] [a]; Matter of Briggs [Commissioner of Labor],
52 AD3d 1081, 1082 [2008]; Matter of Dada [Commissioner of Labor],
41 AD3d 1079, 1079-1080 [2007]). Here, while claimant admitted that he
received the initial determination within a week of its rendering on June
18, 2008, he admittedly failed to request a hearing until August 9, 2008
and proffered no valid excuse for doing so. As such, we find no basis for
disturbing the Board's decision (see Matter of Briggs [Commissioner of
Labor], 52 AD3d at 1082; Matter of Palumbos [Commissioner of Labor],
32 AD3d 1060 [2006]).

Ordered that the decision is affirmed, without costs."

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