Tuesday, June 26, 2012

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

The Appellate Division, 3rd Department has faced this issue as follows:

"IN RE ORTIZ, 70 A.D.3d 1104, 894 N.Y.S.2d 223 [3d Dept 2010]

In the Matter of AMANDA L. ORTIZ, Appellant.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed April 8, 2009, which dismissed claimant's appeal from a decision of
the Administrative Law Judge as untimely.

Amanda L. Ortiz, New York City, appellant pro se.

Aaron M. Feinberg, New York City, Jet Hardware Manufacturing, Inc.,
respondent.

Before: Cardona, P.J., Peters, Lahtinen, Kavanagh and Stein, JJ.,
concur.

In an initial determination issued by the Department of Labor, claimant
was found to be eligible to collect unemployment insurance benefits. The
employer objected and, at the conclusion of a hearing at which claimant
failed to appear, an Administrative Law Judge (hereinafter ALJ)
determined that claimant was disqualified from receiving benefits.
Following a hearing after claimant applied to reopen the case, the ALJ
granted the application to reopen but ultimately sustained the
determination disqualifying claimant from receiving benefits. More than
four months after this decision was rendered, claimant filed her appeal
in December 2008. A hearing was thereafter held on the issue of the
timeliness of claimant's appeal before the Unemployment Insurance Appeal
Board, which concluded that the appeal was untimely and that she failed
to present a good cause for the lateness of the appeal. Claimant now
appeals.

We affirm. "Labor Law § 621 (1) requires that an appeal to the Board
from an ALJ's decision must be made within 20 days of the date the
decision is mailed or personally delivered and the statutory time limit
is strictly construed" (Matter of Pascarella [New York State Thruway
Auth. — Commissioner of Labor], 59 AD3d 835, 835 [2009] [citations
omitted]; accord Matter of Averett [Commissioner of Labor], 65 AD3d 1436,
1436-1437 [2009]). Here, the record demonstrates that the ALJ's
decision, which specifically advised claimant of the 20-day period in
which to bring an appeal, was mailed to claimant on August 4, 2008.
Although claimant admitted receiving the decision shortly thereafter, she
did not submit her request for an appeal until December 2008. While
claimant explained that her delay in appealing was due to confusion as to
the impact of the ALJ's decision and whether she needed to appeal, such
confusion cannot excuse her failure to comply with the timeliness
requirements of Labor Law § 621 (1) (see Matter of Bolden [Commissioner
of Labor], 65 AD3d 727, 727 [2009]; Matter of Jowers [Commissioner of
Labor], 295 AD2d 734, 734 [2002], lv denied 98 NY2d 614 [2002]).
Furthermore, claimant failed to offer any evidence to substantiate her
contention that, due to her confusion, she had made a telephone call to
the Board and was incorrectly informed that the ALJ had, in fact,
determined that she was eligible for benefits. Inasmuch as claimant
failed to offer a reasonable excuse for her untimely appeal of the ALJ's
decision, we discern no basis upon which to disturb the Board's decision
(see Matter of Bolden [Commissioner of Labor], 65 AD3d at 728; Matter of
Uwaezuoke [Commissioner of Labor], 57 AD3d 1193, 1194 [2008]).

Ordered that the decision is affirmed, without costs."

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