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.