UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Some examples of experiences - example 1:

1. Claimant is terminated and applies for benefits.

2. Employer files objection.

3. DOL investigates and holds Claimant eligible.

4. Employer requests hearing.

5. At hearing, Employer defaults. Decision issued in favor of Claimant.

6. Employer makes application to reopen.

7. Application to reopen is granted.

8. At second hearing, Employer defaults.

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

So if an Employer can apply to reopen after default, how many times can this be done? From the Appeals Board website:

"How many times can a party apply to reopen?

Usually, after three failures to appear for a hearing, the next request will be sent to the Appeal Board and will not be automatically scheduled as a hearing. If you receive a Notice of Hearing, you should come to that hearing unless you know it has been adjourned."

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Next let us examine one of the Appeals Board regulations:

"Section 461.8 Reopening.

On application duly made, an administrative law judge may reopen a case where a decision was rendered upon or following the default of a party affected thereby or following the withdrawal of a request for hearing by a party. Such application shall be made to the chief administrative law judge or a senior administrative law judge who thereupon shall designate an administrative law judge to act upon the application. If such party shows good cause for his default or for his withdrawal of his request for a hearing, he shall be entitled to a hearing on the merits."

UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS

Here is the situation: Claimant applies for benefits, Employer objects, DOL investigates and rules in favor of Claimant and Employer requests a hearing. On hearing date, Claimant appears but Employer does not. What happens. First, from the Appeals Board website:

"What if the other party does not attend the hearing?

If you asked for the hearing and go to the hearing, then the hearing will be held unless the judge finds there is good reason to adjourn the case. If the hearing is held, the decision will be made based on your testimony and evidence. If the other side asked for the hearing and does not show up, then a decision will be issued saying that the determination remains in effect. An absent party can apply to reopen the case. Another hearing would be held, and you will get notice of that if it happens. It is important for you to come even if you have been to a hearing already."

ENFORCEMENT OF JUDGMENTS

A recent consultation revealed that in a small claims action, the client received a default judgment against a defendant. Now what? The problem is the same in any litigation: it is easy to obtain a judgment but to enforce it is another story. I have been involved in litigations in which the proceedings involved after trial in order to enforce the money judgment were as protracted as the trial itself. The New York State Unified Court System has put out a pamphlet on Small Claims & Commercial Small Claims Actions procedures and starting on page 18 is a discussion on how to enforce the judgment and this contains information that is relevant to any litigation. Here is the link:

Guide to Small Claims & Commercial Small Claims in New York City, Nassau County, Suffolk County

NOTE TO ATTORNEYS IN NASSAU COUNTY

ON VACATION.

MORTGAGE FORECLOSURE - MANDATORY SETTLEMENT CONFERENCE

As a volunteer attorney yesterday for the Nassau County Bar Association, I notices dome recent changes:

1. There are 3 calendar calls. The sessions now last longer.

2. It appears that after a homeowner makes a loan modification application while in settlement conference part and is denied, the matter is taken out of the mandatory settlement conference. Thus, foreclosures in Nassau may start going faster.

3. At the settlement conference, an order is given directing the homeowner to submit the modification papers by a certain date, for the bank to review by a certain date, and then an adjournment to a certain date.

MORTGAGE FORECLOSURE/LANDLORD & TENANT EVICTION - CAUSES

Yesterday, while volunteering at the Mortgage Foreclosure Clinic at the Nassau County Bar Association, the causes of most homeowners in distress was clear - the economy and/or unemployment. Today, I volunteered for tenants at District Court in the Housing Part. Again, I have not consulted with anyone who has defaulted on their mortgage or lease because they want to - it's the economy. Tomorrow I will be a volunteer attorney at Nassau Supreme Court for mandatory settlement conferences at the 11am session.

PREPARING FOR ANY TRIAL - CLIENT STRESS

Recently, I had a trial where my client gave testimony about facts that I was never advised of. How did this happen? This is my view: due to the stress that a client goes through during a litigation, there is much confusion. Some things a client may be thinking is:

1. I think I told the attorney everything.

2. I am going to withhold information that I feel will not be helpful.

3. The attorney will be able to ascertain all the facts on his or her own.

4. I don't want to put any more effort into this than I have to as it is already stressing me out...let the lawyer figure it out

And the list goes on. This is a recipe for disaster because the attorney cannot prepare for trial if the attorney does not have all the facts. This is a good time to remind clients of their responsibilities, courtesy of the New York State Bar Association:

"Statement of Client’s Responsibilities

Reciprocal trust, courtesy and respect are the hallmarks of the attorney-client relationship. Within that relationship, the client looks to the attorney for expertise, education, sound judgment, protection, advocacy and representation. These expectations can be achieved only if the client fulfills the following responsibilities:

1. The client is expected to treat the lawyer and the lawyer's staff with courtesy and consideration.

2. The client's relationship with the lawyer must be one of complete candor and the lawyer must be apprised of all facts or circumstances of the matter being handled by the lawyer even if the client believes that those facts may be detrimental to the client's cause or unflattering to the client.

3. The client must honor the fee arrangement as agreed to with the lawyer, in accordance with law.

4. All bills for services rendered which are tendered to the client pursuant to the agreed upon fee arrangement should be paid promptly.

5. The client may withdraw from the attorney-client relationship, subject to financial commitments under the agreed to fee arrangement, and, in certain circumstances, subject to court approval.

6. Although the client should expect that his or her correspondence, telephone calls and other communications will be answered within a reasonable time frame, the client
should recognize that the lawyer has other clients equally demanding of the lawyer's
time and attention.

7. The client should maintain contact with the lawyer, promptly notify the lawyer of any change in telephone number or address and respond promptly to a request by the
lawyer for information and cooperation.

8. The client must realize that the lawyer need respect only legitimate objectives of the client and that the lawyer will not advocate or propose positions which are
unprofessional or contrary to law or the Lawyer's Code of Professional responsibility.

9. The lawyer may be unable to accept a case if the lawyer has previous professional
commitments which will result in inadequate time being available for the proper
representation of a new client.

10. A lawyer is under no obligation to accept a client if the lawyer determines that the cause of the client is without merit, a conflict of interest would exist or that a suitable working relationship with the client is not likely."

What I ask my clients to do is to write out, in diary form, their testimony, answering the basic questions of who, what, where, when and how as to each detail. Unfortunately, there are times when there is not full compliance with my request and this is how cases can be lost.

MORTGAGE FORECLOSURE CLINIC - NASSAU COUNTY BAR ASSOCIATION - JULY 20

From the Nassau County Bar Association and I will be there this Tuesday as a volunteer lawyer:

"FREE Mortgage Foreclosure Legal Consultation Clinics

Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County.

Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources.

In addition to meeting one-on-one with a volunteer attorney, housing counselors from the Nassau County Homeownership Center and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- will be on hand to provide assistance.

→ Reservations are required by calling the Bar Association at 516-747-4070 between 9:30 a.m. - 4:30 p.m.

Scheduled 2010 Clinics: June 15, July 20, August 17, September 13, October 18, November 15, December 6. All clinics 3-6 p.m."

DIVORCE - ATTORNEY FEES

Recently, the New York State Bar Association News reported this decision and I thought I would list it here - a partial explanation as to how costly and time consuming a matrimonial case can be on every issue:

HILL v. HILL, CA 09-02616 2010 NY Slip Op 05442[4th Dept 6-18-2010]

Appeal from a judgment of the Supreme Court, Onondaga County (Kevin G. Young, J.), entered December 3, 2008 in a divorce action. The judgment awarded counsel fees to defendant.

MICHAEL J. PULVER, NORTH SYRACUSE, FOR PLAINTIFF-APPELLANT.

BARBARA T. WALZER, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-RESPONDENT.

THEODORE W. STENUF, ATTORNEY FOR THE CHILDREN, MINOA, FOR MADISON H. AND KALEIGH H.

PRESENT: MARTOCHE, J.P., SMITH, CENTRA, SCONIERS, AND PINE, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed in the interest of justice and on the law without costs and the matter is remitted to Supreme Court, Onondaga County, for a hearing in accordance with the following Memorandum: Plaintiff contends that Supreme Court should have conducted an evidentiary hearing before granting that part of defendant's cross motion seeking an award of counsel fees incurred in opposing plaintiff's motion seeking to modify the judgment of divorce. Although plaintiff failed to preserve that contention for our review (see Petosa v Petosa, 56 AD3d 1296, 1298), we nevertheless review it in the interest of justice (see Redgrave v Redgrave, 304 AD2d 1062, 1066-1067), and we agree with plaintiff that the court so erred (see Matter of Mina v Weber, 309 AD2d 1252; Redgrave, 304 AD2d at 1066-1067). Absent a stipulation by the parties, "the court should base its determination [to award counsel fees] upon testimonial and other trial evidence of the financial condition of the parties" (Matter of Cook v Jasinski, 20 AD3d 869, 870; see Mina, 309 AD2d 1252). Here, there is no stipulation in the record permitting the court to determine the issue of counsel fees without conducting a hearing. We therefore reverse the judgment and remit the matter to Supreme Court for a hearing on that issue and thus to decide that part of defendant's cross motion seeking an award of counsel fees.

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

Because of the limited discovery available for an ALJ hearing and the fact that certain documents may not be made aware of until after the Employer has testified, I have usually asked the ALJ to issue a subpoena. The Appellate Division, 3rd Department, has stated a standard of when a ubpoena should be issued in the following case:

"IN RE MOSELEY, 61 A.D.3d 1133, 877 N.Y.S.2d 491 [3d Dept 2009]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 16, 2007, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Ugochukwu Uzoh, New York City, for appellant.

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

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

Claimant, an emergency medical technician, was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct — namely, falsifying work documents by forging the signatures of hospital receiving agents on two ambulance call reports. At the ensuing hearing, the employer's representative testified that the subject reports were initially missing the signatures of both claimant and the hospital receiving agent and stated that claimant subsequently forged the receiving agent's signature on the reports. Claimant denied signing for the receiving agent and requested that the Administrative Law Judge (hereinafter ALJ) issue a subpoena to obtain the original reports, which were in the possession of the hospital and, according to claimant, would support his contention that the forms had been signed by the receiving agent prior to placing his signature on the documents. The ALJ denied claimant's request and determined that claimant was disqualified from receiving benefits, and the Unemployment Insurance Appeal Board affirmed.

Pursuant to 12 NYCRR 461.4 (c), claimant had the right to request that the ALJ issue a subpoena to compel the production of relevant documents, i.e., the original ambulance call reports that he allegedly falsified. Inasmuch as such reports plainly were germane to the pivotal issue in this matter — whether claimant did in fact falsify work-related forms — we agree with the parties that this matter must be remitted for the production of those reports (see Matter of Liposki [Citifloral, Inc. — Commissioner of Labor], 261 AD2d 665, 666 [1999]; Matter of Mintzer [Sheft — Commissioner of Labor], 256 AD2d 965, 966 [1998]; Matter of Ward [Commissioner of Labor], 256 AD2d 773, 774 [1998]; Matter of Box [Commissioner of Labor], 249 AD2d 608 [1998]). The mere fact that the testimony adduced at the hearing could be sufficient to support the Board's finding that claimant engaged in disqualifying misconduct is of no moment, inasmuch as the Board may not have reached the same conclusion if it had had the benefit of reviewing the requested documents (see Matter of Mintzer [Sheft — Commissioner of Labor], 256 AD2d at 966).

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision."

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

Here is more on subpoenas. You will recall yesterday that I posted Section 460.4 of the rules and now I would like to point out subdivision (2) which provides: "An attorney who shall have filed with the board a notice of appearance on behalf of any party may issue and cause to be served, subpoenas to compel the attendance of witnesses in accordance with sections 2302 and 2303 of the Civil Practice Law and Rules (CPLR)."

In practice, at least in my experience, this has been a problem. First, let us look at CPLR 2302 and 2303:

" § 2302. Authority to issue. (a) Without court order. Subpoenas may be
issued without a court order by the clerk of the court, a judge where
there is no clerk, the attorney general, an attorney of record for a
party to an action, an administrative proceeding or an arbitration, an
arbitrator, a referee, or any member of a board, commission or committee
authorized by law to hear, try or determine a matter or to do any other
act, in an official capacity, in relation to which proof may be taken or
the attendance of a person as a witness may be required; provided,
however, that a subpoena to compel production of a patient's clinical
record maintained pursuant to the provisions of section 33.13 of the
mental hygiene law shall be accompanied by a court order. A child
support subpoena may be issued by the department, or the child support
enforcement unit coordinator or support collection unit supervisor of a
social services district, or his or her designee, or another state's
child support enforcement agency governed by title IV-D of the social
security act.
(b) Issuance by court. A subpoena to compel production of an original
record or document where a certified transcript or copy is admissible in
evidence, or to compel attendance of any person confined in a
penitentiary or jail, shall be issued by the court. Unless the court
orders otherwise, a motion for such subpoena shall be made on at least
one day's notice to the person having custody of the record, document or
person confined. A subpoena to produce a prisoner so confined shall be
issued by a judge to whom a petition for habeas corpus could be made
under subdivision (b) of section seven thousand two of this chapter or a
judge of the court of claims, if the matter is pending before the court
of claims, or a judge of the surrogate's court, if the matter is pending
before the surrogate's court, or a judge or support magistrate of the
family court, if the matter is pending before the family court, or a
judge of the New York city civil court, if the matter is pending before
the New York city civil court and it has been removed thereto from the
supreme court pursuant to subdivision (d) of section three hundred
twenty-five of this chapter.

§ 2303. Service of subpoena; payment of fees in advance. (a) A
subpoena requiring attendance or a subpoena duces tecum shall be served
in the same manner as a summons, except that where service of such a
subpoena is made pursuant to subdivision two or four of section three
hundred eight of this chapter, the filing of proof of service shall not
be required and service shall be deemed complete upon the later of the
delivering or mailing of the subpoena, if made pursuant to subdivision
two of section three hundred eight of this chapter, or upon the later of
the affixing or mailing of the subpoena, if made pursuant to subdivision
four of section three hundred eight of this chapter. Any person
subpoenaed shall be paid or tendered in advance authorized traveling
expenses and one day's witness fee. A copy of any subpoena duces tecum
served in a pending civil judicial proceeding shall also be served, in
the manner set forth in rule twenty-one hundred three of this chapter,
on each party who has appeared in the civil judicial proceeding so that
it is received by such parties promptly after service on the witness and
before the production of books, papers or other things.
(b) A child support subpoena issued pursuant to section one hundred
eleven-p of the social services law to public utility companies and
corporations, including but not limited to cable television, gas,
electric, steam, and telephone companies and corporations, as defined in
section two of the public service law, may be served by regular mail, or
through an automated process where information sought is maintained in
an automated data base. All other child support subpoenas issued
pursuant to section one hundred eleven-p of the social services law
shall be served in accordance with the provisions of subdivision (a) of
this section."

At the same time, let us review this Appeal Board rule:

"Section 460.6 Representative's fee.
......
(b) When an attorney or registered agent represents a claimant at a board or administrative law judge hearing, the board or administrative law judge shall ascertain whether or not such attorney or registered agent is appearing for claimant on a fee basis. If benefits are allowed by the board or administrative law judge decision, the board or administrative law judge shall require such attorney or registered agent, following the mailing of the decision, to submit a written statement of his claim for compensation for such service, setting forth in detail:
(1) the total benefits allowed;
(2) the time spent in providing representation;
(3) the legal and factual complexities involved; and
(4) any other factors which may be deemed relevant to the board's
determination of the fee that should be allowed.
When such claim is submitted to an administrative law judge, he shall forward such application, together with his recommendation, to the board for appropriate action. When such claim is submitted to the board, action shall be taken thereon by a board.
(c) If a claimant, an attorney or a registered agent is dissatisfied with the fee set by the board, such person may apply to the board for reconsideration of the fee. Such application must be made in writing within 15 days of the mailing of the notice of the fee approval. In its discretion, the board may accord the parties an opportunity to be heard. The chairman of the board shall designate a member of the board, an administrative law judge, or any other person to hold such hearing. If the hearing is held before an administrative law judge or an individual who is not a member of the board, such designee shall conduct the hearing and submit a report to the board including his recommendation as to the fee. As soon as practicable after the receipt of the application and on the documents submitted or after the conclusion of the hearing, the board shall issue a decision setting forth the fee awarded and the reason(s)therefor.
d) No attorney or registered agent shall receive any money from a claimant, as payment of a fee for representing such claimant, until the board has approved the fee to be allowed. If an attorney or registered agent shall have received a fee payment prior to the approval of the board, he shall promptly remit to the claimant any amount received which is in excess of the amount allowed by the board. If the attorney or registered agent shall fail to make such remittance, the claimant may submit an application to the board for an order or restitution. The chairman of the board shall then designate a member of the board, an administrative law judge, or any other person to hold a hearing, upon due notice to all parties including the corporate surety, for the purpose of considering the application. If the hearing is held before an administrative law judge or an individual who is not a member of the board, such designee shall conduct the hearing and submit a report to the board, including his recommendation on the application. Thereafter, the board shall issue an order on the application. Such order shall be deemed the order of the board when signed by any member of the board and when duly mailed and filed in the Department of Labor. A copy of said order shall be mailed to all parties in these proceedings, including the corporate surety."

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

I changed the heading to "Preparation For Hearings" as this discussion really relates to any ALJ hearing. Here is more on subpoenas. From the Appeals Board rules:

"Section 460.4 Subpoenas and depositions.

(a) (1) A board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge may issue subpoenas, whenever necessary, to compel the attendance of witnesses and the production of writings, books, contracts, papers, documents or other evidentiary matter. A subpoena duces tecum, unless directed to be issued by a board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge, on his own motion, shall be issued only upon a showing of the necessity therefore by the party applying for its issuance. All of the aforesaid subpoenas shall be issued under the seal of the department.

(2) An attorney who shall have filed with the board a notice of appearance on behalf of any party may issue and cause to be served, subpoenas to compel the attendance of witnesses in accordance with sections 2302 and 2303 of the Civil Practice Law and Rules.

(3) Witnesses subpoenaed for any hearing shall be paid or tendered witness and mileage fees in advance in accordance with the provisions of section 2303 of the Civil Practice Law and Rules of the State of New York.

(4) A motion to quash, fix conditions or modify a subpoena shall be made promptly to the board or to the administrative law judge section to which the subpoena is returnable. A request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made before the board or the administrative law judge. Reasonable conditions may be imposed upon the granting or denial to quash or modify.

(b) A board member, the chief administrative law judge, a senior administrative law judge or the administrative law judge, whenever necessary, shall take or cause to be taken, depositions of witnesses residing within or without the State."

UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

Continuing with preparing for a hearing....From the Appeals Board website:

"What is a subpoena? Can you issue a subpoena for me before the hearing?

A subpoena is a piece of paper ordering a witness to come to the hearing, or ordering documents to be brought to the hearing. If you have an attorney, the attorney issues the subpoena. If you have no attorney, notify the hearing office right away by fax or mail if you need a subpoena. Include your name and case number. State the person or document(s) that you want to have subpoenaed, why you can’t bring the witness or evidence on your own, and what you believe the witness or evidence would prove. You will be told if your request is granted or not."

UNEMPLOYMENT INSURANCE - MISCONDUCT AND PREPARATION FOR HEARINGS

As I discussed yesterday, when there is a charge of misconduct, in order to prepare one's defense, a Claimant may be required to investigate the claim on his or her own accord. This is called preparing for the hearing, although this discussion is also relevant during the investigative stage of your claim by the DOL (if the DOL has all the information, it may avoid a notice of adverse determination). From the Appeals Board website:

"How should I get ready for the hearing?

Get any papers that are connected to the issue in the case. Inform your witnesses of the date and time of the hearing. If you want to get a lawyer or representative, get one as soon as possible. Notify the hearing office of the name and address of your attorney or representative. If there is an important witness or important evidence that is not in your control, ask for a subpoena for that witness or evidence (see below).

Do I have to come to the hearing?

If you asked for the hearing but do not come, you will automatically lose unless the case is adjourned. If the other party asked for the hearing and you don’t come, what the other side says could be found to be true without you giving your side of the case. You can still apply to reopen the hearing but you will have to show good cause for not coming to the earlier hearing.

Who or what else should I bring to the hearing?

Bring any witnesses or documents that you think are important to your case and any witnesses or documents that the Notice of Hearing directs you to produce. You can bring an attorney or any other person to represent you. If you want to submit documents that you do not have in your possession or want a witness who is not willing to come voluntarily to the hearing, you can ask a judge to subpoena the document or the witness by calling and notifying the hearing office of your request. Please follow the procedure described below under "Subpoenas".

UNEMPLOYMENT INSURANCE - MISCONDUCT AND PREPARATION FOR HEARINGS

This was from a recent column from Newsday columnist Carrie Mason-Draffen, a business reporter, who writes a column about workplace issues:

"DEAR CARRIE: My husband is a custodian at a private school. He hurt his knee at work, filed an accident report and went to a doctor as a workers' compensation case. His doctor recommended an MRI. In the meantime, his employer seems to be trying to get rid of him. Under orders, a supervisor changed my husband's performance evaluation to "needs improvement" from the "satisfactory" review initially submitted. Can they do this? My husband is and always has been a very conscientious employee. If the company lets him go, does he have any rights? We don't have any money to hire a lawyer if the person requires a retainer.
-- Adding insult to injury

DEAR ADDING: Increasing numbers of workers find themselves in situations like your husband's, said a Manhattan employment lawyer who represents employees.

"False performance reviews, such as your husband's, are being increasingly used by employers all over the world as a concocted paper trail to justify either firing employees they no longer want around or to induce those employees to quit in anger or disgust," said Alan Sklover, a partner at Sklover, Donath & Felber in Manhattan.

Those departures compound difficulties for employees because they leave without severance, often don't qualify for unemployment benefits and in some cases are not even entitled to COBRA health-care continuation, Sklover noted.

"Sadly, to use a baseball term, many employers see that as a grand-slam result," he said.

From the information you provided, it appears your husband has always been a good employee, Sklover said. Now, his employer may feel it will be a hassle to accommodate your husband's need for medical appointments, or his possible difficulty with certain parts of his job, such as heavy lifting.

"None of those things, though, are valid reasons to fire an employee," Sklover said. "And worse, these reasons may even constitute violations of law; for example, illegal retaliation for filing a workers' compensation claim, or illegal discrimination against someone now viewed as partially disabled."

Since your husband works for a private school, Sklover suggests he send an e-mail or letter to the headmaster, dean or the trustees. He should send the letter by certified mail, by overnight delivery service.

"Your husband's letter should request an objective, independent investigation of his performance and his performance review," Sklover said.

This strategy doesn't require an attorney, although it may be wise to have an attorney review your husband's draft letter, he said. The approach, Sklover said, is likely to both forestall the firing your husband expects, and may well prevent it, he said."

I agree with the above but in this economy, in some circumstances, a potential Claimant may have to do more and prepare for a potential hearing by documenting his performance himself, gathering witnesses and perhaps even have someone, outside the Employer, conduct an independant investigation.

UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

So if this discussion has instructed anything on behalf of Claimant's, it is that the 30 day notice of appeal is rule is to be strictly followed as it is strictly construed. Follow each and every instruction on the back of the Notice of Decision and do more: send it certified mail, return receipt request, fax it with a date acknowledgment of receipt, etc., telephone call to make sure it has been received. It's busy at the Appeals Board and you don't want your notice of appeal to be lost.

UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

From the Appeals Board website:

"Timeliness

Where the statutory appeal period ends on a Saturday, Sunday or holiday, such period is extended until the next business day. (A.B. 169,597A; See General Construction Law Sub. Sec. 25-a)"

UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

Another case from the Appellate Division, 3rd Dept.:

"IN RE UWAEZUOKE, 57 A.D.3d 1193, 870 N.Y.S.2d 499 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 9, 2007, which dismissed claimant's appeal from a decision of the Administrative Law Judge as untimely.

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

Claimant applied for unemployment insurance benefits when her employment with the New York City Housing Authority ended. After she was denied benefits, extended hearings and proceedings ensued which culminated in an August 10, 2007 decision of an Administrative Law Judge (hereinafter ALJ) ruling that claimant was ineligible to file a valid original claim. By letter dated September 1, 2007, claimant appealed the ALJ's decision to the Unemployment Insurance Appeal Board. The Board conducted a telephone hearing concerning the timeliness of claimant's appeal. At the conclusion of the hearing, the Board dismissed the appeal as untimely. Claimant now appeals the Board's decision.

We affirm. Labor Law § 621 (1) provides 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 to the claimant. This statutory time period is strictly construed (see Matter of Moorer [Commissioner of Labor], 40 AD3d 1335 [2007]). In the case at hand, the ALJ's decision was mailed on August 10, 2007.[fn*] Notably, the decision contained a proviso specifically advising claimant that an appeal to the Board had to be taken within 20 days, which claimant admittedly read. Claimant's appeal letter is dated September 1, 2007 and was postmarked on September 17, 2007, 38days after the mailing of the ALJ's decision. Inasmuch as claimant failed to offer a reasonable excuse for her failure to file her appeal within the 20-day time period, we find no reason to disturb the Board's decision dismissing the appeal as untimely (see Matter of Lampkin [Commissioner of Labor], 29 AD3d 1248, 1249 [2006]; Matter of Trinidad [Commissioner of Labor], 21 AD3d 1208, 1209 [2005]).

Ordered that the decision is affirmed, without costs.

[fn*] Although claimant initially testified that she did not receive the ALJ's decision until the end of September 2007, she later admitted that she did not know exactly when she received it, but that it was probably in August 2007. Claimant's equivocal testimony is insufficient to refute the notation on the decision that it was mailed on August 10, 2007."

As a side note, earlier this year, I represented a claimant during one of these "telephone hearings" but it was on the issue of the employer's timely request for an appeal. The whole procedure lasted about 6 months, with at least 3-4 telephone hearings.

UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

Another case from the Appellate Division, 3rd Dept.:

In the Matter of the Claim of WILLIAM W. PAGE, Appellant v. COMMISSIONER OF LABOR, Respondent, 65 A.D.3d 722, 882 N.Y.S.2d 923 (2009)

PETERS, J.P., ROSE, KANE, KAVANAGH and McCARTHY, JJ., concur.

By decision dated and mailed October 25, 2007, an Administrative Law Judge (hereinafter ALJ) sustained the initial determination finding that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. During a telephone hearing to determine the timeliness of his April 22, 2008 appeal, claimant admitted to receiving and reading the ALJ's decision, including the instructions regarding the taking of an appeal, shortly after it was mailed, but testified that the delay in requesting an appeal was due to his belief that an appeal would be futile. Specifically, claimant testified that, upon reading the ALJ's decision, he was "totally dismayed" and "just lost the interest and the will" to pursue the matter further. In April 2008, upon receiving a postinvestigation determination of the Division of Human Rights which apparently contained encouraging findings, claimant testified that it occurred to him that he should appeal the October 2007 determination. Subsequently, the Unemployment Insurance Appeal Board dismissed claimant's appeal as untimely, prompting this appeal.

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 (see Matter of Pascarella [New York State Thruway Auth.—Commissioner of Labor], 59 AD3d 835, 835 [2009]; Matter of Cuccia [Martinez & Ritorto, P.C.— 723*723 Commissioner of Labor], 55 AD3d 1115, 1116 [2008]; Matter of Bottex [Commissioner of Labor], 48 AD3d 855, 856 [2008]). Because "[t]his statutory time period is strictly construed" (Matter of Uwaezuoke [Commissioner of Labor], 57 AD3d 1193, 1193-1194 [2008]; see Matter of Moorer [Commissioner of Labor], 40 AD3d 1335 [2007]), we discern no basis upon which to disturb the Board's decision dismissing the appeal, made more than five months after the expiration of the 20-day time limit, as untimely.

UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

Another case from the Appellate Division, 3rd Dept.:

IN RE BOLDEN, 65 A.D.3d 727, 884 N.Y.S.2d 280 [3d Dept 2009]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 15, 2008, which dismissed claimant's appeal from a decision of the Administrative Law Judge (hereinafter ALJ) as untimely.

Eleanor Bolden, New York City, appellant pro se.

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

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

In an initial determination issued by the Department of Labor, claimant was denied unemployment insurance benefits upon a determination that she had voluntarily separated from her employment without good cause. Claimant failed to appear at a scheduled hearing in January 2008 and the denial of benefits was consequently sustained by an ALJ. In March 2008, claimant's application to reopen was denied by an ALJ, following a hearing. Subsequently, in June 2008, claimant appealed the March 2008 decision of the ALJ to the Unemployment Insurance Appeal Board and, following a hearing on the issue of the timeliness of the appeal, the Board concluded that claimant's appeal was untimely and that she failed to present good cause for the lateness of the appeal. Claimant now appeals.

We affirm. Pursuant to Labor Law § 621 (1), an appeal to the Board from an ALJ's decision must be made within 20 days of its mailing or personal delivery, and this time period is strictly construed (see Matter of Uwaezuoke [Commissioner of Labor], 57 AD3d 1193, 1193 [2008]; Matter of Bottex [Commissioner of Labor], 48 AD3d 855, 856 [2008]; Matter of Harris [Commissioner of Labor], 45 AD3d 1031, 1032 [2007]). Here, the ALJ's decision, which specifically advised claimant of the 20-day period in which an appeal must be taken and which she admitted to having read, was mailed in March 2008. Nonetheless, claimant failed to appeal the decision until June 2008, three months after the ALJ's decision was mailed. Although claimant explained that she had been confused with respect to the impact of the ALJ's March 2008 decision upon the merits of her claim and whether an appeal was necessary at that time, such confusion cannot excuse the failure to comply with the strict timeliness requirements of title eight of the unemployment insurance law (See Labor Law art 18; Matter of Jowers [Commissioner of Labor], 295 AD2d 734, 735 [2002], lv denied 98 NY2d 614 [2002]; Matter of Velez [Commissioner of Labor], 285 AD2d 882, 883 [2001]). Accordingly, in light of claimant's failure to offer a reasonable excuse for her untimely appeal of the ALJ's decision, we find no reason to disturb the Board's decision and we need not address the merits of the underlying denial of claimant's request for benefits (see Matter of Fattakhov [Commissioner of Labor], 55 AD3d 1205, 1206 [2008]).

Ordered that the decision is affirmed, without costs.



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UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

Another recent case from the Appellate Division, 3rd Dept.:

"MATTER OF DAVIS v. COMMISSIONER OF LABOR, 2010 NY Slip Op 02467 [3d Dept 3-25-2010]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 15, 2009, which dismissed claimant's appeal from a decision of an Administrative Law Judge as untimely.

Hollis V. Pfitsch, The Legal Aid Society, New York City, for appellant.

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

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

MEMORANDUM AND ORDER

By decision filed January 14, 2009, an Administrative Law Judge sustained the Commissioner of Labor's initial determination that claimant was disqualified from receiving unemployment insurance benefits, finding that he had voluntarily separated himself from employment without good cause. Although claimant received the decision shortly thereafter, he did not appeal the decision to the Unemployment Insurance Appeal Board until March 16, 2009. The Board dismissed the appeal as untimely and claimant now appeals.

We affirm. Labor Law § 621 (1) provides that an appeal from an Administrative Law Judge's decision must be filed with the Board within 20 days of its mailing or personal delivery, and this time period is strictly construed (see Matter of Uwaezuoke [Commissioner of Labor], 57 AD3d 1193, 1193 [2008]). Here, it is undisputed that claimant failed to file his appeal within the statutory time period. Inasmuch as the record reflects that claimant did not offer any excuse or explanation for the delay to the Board, we cannot say that the Board improvidently dismissed the appeal as untimely (see Matter of Bolden [Commissioner of Labor], 65 AD3d 727, 728 [2009]). Thus, claimant's contention, raised for the first time on appeal, that the delay was due to a ministerial error by his former attorney is not properly before us (see generally Matter of Horvath [Residence Inn/Buffalo Lodging Assoc., LLC — Commissioner of Labor], 32 AD3d 1089, 1089 [2006]; Matter of Schnabel [Commissioner of Labor], 307 AD2d 572, 572-573 [2003]). In light of the foregoing, we do not address the underlying merits of the denial of the claim for benefits (see Matter of Harris [Commissioner of Labor], 45 AD3d 1031, 1032 [2007]).

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

ORDERED that the decision is affirmed, without costs.

HAPPY 4th of JULY!

UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

And here is a recent case from the Appellate Division, 3rd Department to show how strictly the court construes the 20 day requirement:

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

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 prose.

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.

UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

Here are the relevant Appeal Board regulations for the timely notice of appeal:

"Section 463.1 Notice of appeal.

(a) Generally. In any notice of appeal, the party appealing should state the reasons therefor.

(b) By claimant. A claimant may appeal, pursuant to section 621, subdivision 1 of the law, by filing a notice of appeal at the designated local office, or at any office of the administrative law judge section, or at the office of the appeal board, within 20 days after the mailing or personal delivery of the administrative law judge decision."

UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD

Statutory authority for the issue of timeliness of Claimant's Appeal to the Appeal Board is found in Labor Law Section 621:

"Sec. 621. Appeals to appeal board. 1. Disputed claims for benefits. Within twenty days after the mailing or personal delivery of notice of the decision of a referee on contested benefit claims, the claimant and the employer, provided he appeared at the hearing, may appeal to the appeal board by filing a notice of appeal in the local state employment office in accordance with such rules as the appeal board shall prescribe. Within the same period of time and in the same manner, the commissioner may also appeal to the appeal board, regardless of whether or not he appeared or was represented at the hearing before the referee.

Subd. 1 as amended by L. 1960, Ch. 787 effective April 25, 1960."