Wednesday, December 8, 2010

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

This is one of the strictest decisions I know of regarding the 30 day time period:

"IN RE BRIGGS, 52 A.D.3d 1081, 861 N.Y.S.2d 159 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed March 19, 2007, which ruled that claimant's
request for a hearing was untimely.

Rudolph J. LePore, Rochester, for appellant.

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

Before: Mercure, J.P., Spain, Rose, Kane and Kavanagh, JJ.

By notice of determination mailed December 5, 2006,
claimant was disqualified from receiving unemployment insurance
benefits upon the ground that her employment was terminated due
to misconduct. On January 5, 2007, claimant requested a
hearing. An Administrative Law Judge ruled that claimant's
request for the hearing was untimely and the Unemployment
Insurance Appeal Board affirmed. This appeal by claimant
ensued.

We affirm. "Pursuant to Labor Law § 620 (1) (a), a claimant
must request a hearing within 30 days of the date of the
mailing of the initial determination" (Matter of Dada
[Commissioner of Labor], 41 AD3d 1079, 1080 [2007];
see Matter of Jarrett [Commissioner of Labor],
13 AD3d 965 [2004]; Matter of Diaz [Commissioner of Labor],
6 AD3d 1024 [2004]). Here, the notice of determination was mailed
to claimant on December 5, 2006, and claimant admitted
receiving the notice shortly thereafter. Although claimant
argues that her request for a hearing was late by only one day,
this Court has held that a request for a hearing made on the
31st day after the mailing of the notice of determination is
untimely (see Matter of Ahmed [Commissioner of Labor],
294 AD2d 747 [2002]). Inasmuch as claimant failed to
demonstrate that she suffered from a mental or physical
incapacity that precluded her from requesting a hearing within
the 30-day period, we find no reason to disturb the Board's
decision (see Matter of Dada [Commissioner of Labor],
41 AD3d at 1080; Matter of Jarrett [Commissioner of
Labor], 13 AD3d at 965; Matter of Diaz [Commissioner
of Labor], 6 AD3d at 1024).

Ordered that the decision is affirmed, without costs."

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