Sunday, December 5, 2010

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another example from the Third Department:

"IN RE ALMONTE, 65 A.D.3d 729, 882 N.Y.S.2d 924 [3d Dept 2009]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed October 22, 2008, which ruled that claimant's
request for a hearing was untimely.

Maria M. Almonte, Houston, Texas, appellant pro se.

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

Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ.,
concur.

Claimant was discharged from her position as a housekeeper in a
hotel on February 4, 2008 and applied for unemployment insurance
benefits. The Department of Labor mailed an initial
determination denying her claim on March 3, 2008. Although
the reverse side of the initial determination advised claimant
that a request for a hearing had to be made within 30 days of
the date that determination was mailed, claimant did not request
a hearing until June 5, 2008. The Commissioner of Labor's
objection to the timeliness of claimant's hearing request was
sustained by the Unemployment Insurance Appeal Board, prompting
this appeal.

We affirm. A request for a hearing must be made within 30 days
after the mailing of the initial determination (see
Labor Law § 620 [1] [a]; Matter of Baird [Commissioner
of Labor], 54 AD3d 466, 467 [2008]). Claimant's assertion
that she was relying on her legal representation to timely
request a hearing does not excuse her failure to do so,
particularly given her alleged status as a paralegal who,
despite an awareness of the applicable 30-day time period for
requesting a hearing, admittedly scheduled an initial
appointment for legal assistance on April 4, 2008, more than 30
days after the initial determination had been mailed (see
Matter of Burey [Commissioner of Labor], 8 AD3d 871, 872
[2004]; see generally Matter of Wilner [Commissioner of
Labor], 27 AD3d 860, 861 [2006]; Matter of Bryant
[Commissioner of Labor], 24 AD3d 942, 943 [2005]).
Accordingly, we find no basis on which to disturb the Board's
decision.

Ordered that the decision is affirmed, without costs."

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