HAPPY NEW YEAR 2011!

Here are some good lawyer resolutions from The Texas Lawyer:

Texas Counsel Share Their 2011 New Year's Resolutions

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 3 of the Statement of Appeal submitted on February 10, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 2 of the Statement of Appeal submitted on February 10, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 1 of the Statement of Appeal submitted on February 10, 2010.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

I then asked the Claimant to give me a detailed summary, in chronological order, of the history of the Claimant's mental condition and also a detailed summary, in chronological order, of the history of the misconduct claim against Claimant. With respect to the misconduct claim, I was referred to the attorney representing the Claimant in the other tribunal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

I made a decision not to request a transcript of the initial hearing for the following reasons:

1. To expedite the appeal.

2. The issue of mental capacity was not brought up at the hearing.

3. The issue of misconduct was being resolved in another tribunal and a final disposition was not expected until the summer.

4. If an appeal was granted and a new hearing ordered, I would be able to review the tape recording of the initial hearing in advance and could address then whatever issues might be raised in the first hearing that was not already addressed in the initial decision.

HAPPY HOLIDAYS

The legal "'Twas the Night Before Christmas" Excerpted from the NEA Journal, December 1960:

Whereas, on an occasion immediately
preceding the Nativity festival,
throughout a certain dwelling unit,
quiet descended, in which could be heard
no disturbance, not even the sound
emitted by a diminutive rodent related
to, and in form resembling, a rat; and

Whereas, the offspring of the
occupants had affixed their tubular,
closely knit coverings for the nether
limbs to the flue of the fireplace in
expectation that a personage known as
St.Nicholas would arrive; and

Whereas, said offspring had become
somnolent, and were entertaining re:
saccharine-flavored fruit; and

Whereas, the adult male of the
family, et ux, attired in proper
headgear, had also become quiescent in
anticipation of nocturnal inertia; and

Whereas, a distraction on the snowy
acreage outside aroused the owner to
investigate; and

Whereas, he perceived in a most
unbelieving manner a vehicle propelled
by eight domesticated quadrapeds of a
species found in artic regions; and

Whereas, a most odd rotund gentleman
was entreating the aforesaid animals by
their appellations, as follows:

"Your immediate co-operation is
requested. Dasher, Dancer, Prancer, and
Vixen; and collective action by you will
be much appreciated, Comet, Cupid,
Donder, and Blitzen"; and

Whereas, subsequent to the above,
there occurred a swift descent to the
hearth by the aforementioned gentleman,
where he proceeded to deposit gratuities
in the aforementioned tubular coverings.

Now, therefore, be ye advised:
that upon completion of these acts,
and upon his return to his original
point of departure, he proclaimed
a felicitation of the type prevalent
and suitable to these occasions, ie:

Merry Christmas to All and to All a Good Night!

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is Page 2 of the Notice of Receipt of Appeal. The reverse side, has noted in earlier blogs, sets forth the rules involved in perfecting the appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

On February 9, the Claimant faxed me a Notice of Receipt of Appeal that was received. Note that although I filed the Notice of Appeal on February 5, I was not listed as an attorney of record. Here is Page 1 of the Notice of Receipt of Appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Here is the Notice of Appeal filed by fax on February 5, 2010. I realize it is hard to read but it is the only way I can copy it and redact certain personal information. Basically, based upon my conversations with the Claimant's friend, I asked the Appeal Board to have a rehearing on the issue of the Claimant's mental capacity as an excuse for failure to file a timely request as the Claimant was being treated for mental illness, was homeless, on social services and had a meritorious defense to the claim of misconduct. Certain documentary evidence was also attached and case law was referred to.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

I consulted with the Claimant by phone. The Claimant was homeless, living out of a car, on social services, and having mental issues. The Claimant was incoherent and suggested that I speak to a friend of the Claimant to get the facts.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

The 20 day requirement for filing an appeal is as strictly followed as the 30 day requirement for requesting a hearing. So after reviewing the decision, I had to contact the Claimant immediately and ascertain the facts in order to prepare an appeal.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 3 of the decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 2 of the decision - all reverse sides of the pages of the decisions set forth the rights to appeal to the Appeal Board and should always be read.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Page 1 of the decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING - CASE NO. 3

Again, this was a pro bono case and it deals with the issue of a timely request for hearing as well as misconduct. It started at the end of January 2010. I received a phone call from someone at a government agency. They advised me that a homeless person was denied unemployment benefits, was quite upset, received an adverse decision from the DOL and the ALJ and could I help. Immediately, I asked them to fax over the decision.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

I was sucessful in getting one ruling in favor of a Claimant who did not file a timely request for a hearing. I will discuss the case in this and future blogs. This case was handled on a pro bono basis.

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"Claimant's attempt to request a hearing by telephone within thirty days of the mailing of the initial determination does not constitute a timely hearing request if the claimant is advised of the necessity to make such request in person or by mail and claimant has sufficient time to comply, but does not act promptly to make such request within the statutory period. (A.B. 409,1851; A-750-2050)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"In the absence of proof to the contrary, a determination is deemed mailed on the date recited on the initial determination and deemed received by the party to whom it is addressed within five business days. A hearing request is timely if such request is postmarked within 30 days of the appealing party’s receipt of the determination, or if there is other proof of filing of same with the commissioner within thirty days of receipt.(A.B. 545591; A-750-2130)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Another case from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)"

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Now for some cases from the Appeal Board on the issue of the timeliness of a Claimant's Request For Hearing:

"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 - HEARING AND APPEAL - REQUEST FOR HEARING

Now on this issue, let us examine the Appeal Board rules - again, right now we are limiting this discussion to the Claimant's request for a hearing:

"Section 461.1 Request for hearing under subdivision 1 of section 620 (claimant case).

(a) A claimant who is dissatisfied with an initial determination, or any other party affected by such determination, may request a hearing before an administrative law judge, pursuant to subdivision 1 of section 620 of the law, within 30 days after the mailing or personal delivery of such initial determination. A request for a hearing shall be deemed to be timely filed if such request is postmarked within 30 days of the appealing party's receipt of such determination, or if there is other proof of filing of same with the commissioner, such as a fax acknowledgment, a certificate of mailing, a stamped receipt by an agent of the commissioner, or an affidavit of personal service on the commissioner or her agent by a disinterested party. Absent proof to the contrary, an initial determination of the commissioner shall be deemed to have been mailed on the date recited on the initial determination and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. The request for such hearing shall be filed at the local office. The request should be in writing stating the reasons therefor.

(b) If an affected party, other than a claimant, requests a hearing on an initial determination which has held the claimant eligible to receive benefits, such party must submit a written statement of the factual basis or specific events which such party contends are the grounds for denying benefits to the claimant. This statement of the factual incidents which are in issue should be of sufficient particularity as to inform the claimant of the facts to which the claimant must be prepared to respond at a hearing. Prior to the hearing, a copy of this written statement must be sent to the claimant."

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."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Yesterday, a climant called with another reason for not sending in a request for a hearing within the 30 day period, but as we can see, the court is strict on this issue. Here's another case:

"IN RE WINSTON, 52 A.D.3d 1137, 862 N.Y.S.2d 127 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed December 19, 2006, which, among other things,
ruled that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed.

Winston R. Martinez, Lake Wylie, South Carolina, appellant
pro se.

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

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

Claimant filed original claims for benefits effective
August 29, 2004 and September 26, 2005. As to the August 2004
claim, substantial evidence supports the Unemployment Insurance
Appeal Board's finding that claimant's request for a hearing
was untimely. Although the underlying notice of determination
was mailed to claimant on April 13, 2006, he did not request a
hearing until more than three months later — well beyond
the 30-day limit imposed by Labor Law § 620 (1) (a)
(see Matter of Jarrett [Commissioner of Labor],
13 AD3d 965 [2004]). Claimant's proffered excuse for the delay
— that he "had a lot going on" at that time — falls
far short of demonstrating that he suffered from a mental or
physical incapacity that precluded him from requesting a
hearing within the 30-day period (see id.).

......."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

And another leading case on the issue:

"IN RE BAIRD, 54 A.D.3d 466, 862 N.Y.S.2d 415 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance
Appeal Board, filed August 28, 2007, which ruled that
claimant's request for a hearing was untimely.

Laurie G. Baird, Albany, appellant pro se.

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

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

After quitting her part-time job, claimant was terminated
from her full-time job. She applied for unemployment insurance
Page 467
benefits and, on October 17, 2006, the Department of Labor
mailed an initial determination denying her claim. 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
it was mailed. Claimant, however, did not request a hearing
until April 6, 2007. The Commissioner of Labor objected to the
timeliness of the hearing, which was ultimately sustained by
the Unemployment Insurance Appeal Board. Claimant appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), a claimant
has 30 days within which to request a hearing after the date of
mailing of the initial determination (see Matter of Ricketts
[Commissioner of Labor], 47 AD3d 1177 [2008]). In the case
at hand, claimant made her request for a hearing well outside
the 30-day time period and did not provide a reasonable excuse
for her delay (see Matter of McCarthy [Commissioner of
Labor], 39 AD3d 993, 993 [2007]; Matter of Palumbos
[Commissioner of Labor], 32 AD3d 1060 [2006]). Therefore,
we find no reason to disturb the Board's decision.

Ordered that the decision is affirmed, without costs."

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."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is another case illustrating the strictness of the 30 day requirement:

"IN RE LEWIS, 69 A.D.3d 1088, 892 N.Y.S.2d 664 [3d Dept 2010]

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed December 1, 2008, which ruled that claimant's request for a hearing
was untimely.

Martin Lewis, New York City, appellant pro se.

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

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

By initial determination mailed on June 18, 2008, the Department of
Labor found that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed. In addition,
the Department found that he had been overpaid $171 and that he had made
false statements in order to obtain benefits and, therefore, reduced his
right to receive further benefits by 16 days. Claimant did not request a
hearing until August 9, 2008. The Commissioner of Labor objected to the
timeliness of the request and, following various proceedings, the
Unemployment Insurance Appeal Board ruled that claimant's request was
untimely, prompting this appeal.

We affirm. A claimant who is dissatisfied with an initial determination
must request a hearing within 30 days of the date that it is mailed,
unless physical or mental incapacity prevents him or her from doing so
(see Labor Law § 620 [1] [a]; Matter of Briggs [Commissioner of Labor],
52 AD3d 1081, 1082 [2008]; Matter of Dada [Commissioner of Labor],
41 AD3d 1079, 1079-1080 [2007]). Here, while claimant admitted that he
received the initial determination within a week of its rendering on June
18, 2008, he admittedly failed to request a hearing until August 9, 2008
and proffered no valid excuse for doing so. As such, we find no basis for
disturbing the Board's decision (see Matter of Briggs [Commissioner of
Labor], 52 AD3d at 1082; Matter of Palumbos [Commissioner of Labor],
32 AD3d 1060 [2006]).

Ordered that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is another case illustrating the strictness of the 30 day requirement:

"IN RE WRIGHT, 71 A.D.3d 1324, 895 N.Y.S.2d 886 [3d Dept 2010]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 18, 2009, which ruled that claimant's request
for a hearing was untimely.

Dwayne Wright, Newark, New Jersey, appellant pro se.

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

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

After he was terminated from his position as an assistant
manager with a shipping and receiving company, claimant applied
for unemployment insurance benefits. The Department of Labor
mailed an initial determination on October 3, 2008 denying his
claim. Claimant waited until December 5, 2008 to request a
hearing. At the hearing, the Commissioner of Labor objected to
its timeliness. The Unemployment Insurance Appeal Board
sustained the timeliness objection and upheld the initial
determination. Claimant appeals.

We affirm. It is undisputed that claimant failed to request a
hearing within 30 days of the date that the initial
determination was mailed as required by Labor Law § 620 (1)
(a) (see Matter of Lewis [Commissioner of Labor],
69 AD3d 1088 [2010]; Matter of Baird [Commissioner of
Labor], 54 AD3d 466, 467 [2008]; Matter of Briggs
[Commissioner of Labor], 52 AD3d 1081, 1082 [2008]). The
proffered reason for his failure to make the request sooner was
that he had difficulty focusing due to fact that he was moving
from place to place. Inasmuch as this did not constitute a
reasonable excuse for the delay (see Matter of Baird
[Commissioner of Labor], 54 AD3d at 467) and claimant has
not demonstrated that he suffered from a mental or physical
disability that precluded him from requesting a hearing within
the 30-day time period (see Matter of Martinez
[Commissioner of Labor], 52 AD3d 1137, 1137 [2008];
Matter of Briggs [Commissioner of Labor],
52 AD3d at 1082), we find no reason to disturb the Board's decision.

Ordered that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is a recent case where the Cliamant was just a few weeks later in the request for hearing:

"IN MATTER OF DAVIS v. COMM. OF LABOR, 907 N.Y.S.2d 434 [3d Dept 9-23-2010]

Decided and Entered: September 23, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed February 26, 2010, which ruled that claimant's request for a
hearing was untimely.

Nathaniel K. Davis, East Patchogue, appellant pro se.

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

Before: Cardona, P.J., Peters, Rose, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Claimant, a certified nurse's aide for an assisted living facility, was
terminated from employment for failing to disclose his criminal history
on his job application. Thereafter, he applied for unemployment insurance
benefits and the Department of Labor, finding that claimant lost his
employment due to misconduct, denied his claim by initial determination
dated August 5, 2009. In response, claimant did not send a letter
requesting a hearing until September 23, 2009. Following a hearing, the
Unemployment Insurance Appeal Board sustained the Commissioner of Labor's
timeliness objection and upheld the initial determination. Claimant now
appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), a claimant who is
dissatisfied with an initial determination must request a hearing within
30 days of the date that it was mailed, unless prevented from doing so by
physical or mental incapacity (see Matter of Wright [Commissioner of
Labor], 71 AD3d 1324 [2010]; Matter of Lewis [Commissioner of Labor],
69 AD3d 1088 [2010]). Here, inasmuch as claimant admittedly mailed his
request for a hearing outside the 30-day time period and failed to
proffer an acceptable excuse for the delay, we find no basis for
disturbing the Board's decision (see Matter of Wright [Commissioner of
Labor], 71 AD3d at 1324; Matter of Baird [Commissioner of Labor],
54 AD3d 466, 467 [2008]).

Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs."

UNEMPLOYMENT INSURANCE - HEARING AND APPEAL - REQUEST FOR HEARING

Here is another case of interest:

"IN MATTER OF ADJEKUM v. COMMR. OF LABOR, 907 N.Y.S.2d 724 [3d Dept 9-30-2010]

Decided and Entered: September 30, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed April 7, 2009, which ruled that claimant's request for a hearing
was untimely.

Robert Adjekum, Perth Amboy, New Jersey, appellant pro se.

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

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ.

MEMORANDUM AND ORDER

The Department of Labor issued a notice of determination dated October
9, 2008 disqualifying claimant from receiving unemployment insurance
benefits on the ground that he lost his employment due to misconduct.
Claimant responded by letter dated November 23, 2008 protesting the
notice of determination. Following a hearing, an Administrative Law Judge
sustained the Commissioner of Labor's timeliness objection, and that
decision was upheld by the Unemployment Insurance Appeal Board. Claimant
appeals.

We affirm. "Labor Law § 620 (1) (a) provides that a claimant aggrieved
by a notice of determination has 30 days from the date of the mailing of
such notice to request a hearing, unless the claimant suffers from a
physical or mental condition preventing a timely request, in which case
the period may be extended" (Matter of Walker [Commissioner of Labor],
23 AD3d 752, 753 [2005] [citation omitted]; see Matter of Pelli
[Commissioner of Labor], 35 AD3d 930 [2006]). Here, it is undisputed that
claimant did not request a hearing within the requisite 30-day period
despite the instructions on the back of the notice of determination.
While he offered a variety of excuses for his omission, including that he
was out of the country, suffered from high blood pressure and was
experiencing financial difficulties, claimant failed to submit compelling
proof demonstrating that he suffered from a physical or mental condition
that prevented him from complying with the statute. Accordingly, the
Board properly concluded that the hearing request was untimely, and the
merits of his disqualification are not properly before this Court
(see Matter of McCarthy [Commissioner of Labor], 39 AD3d 993, 993-994
[2007]).

Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs."