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

Another case:

IN MATTER OF DAVIS v. COMM. OF LABOR [3d Dept 9-23-2010]
2010 NY Slip Op 06682, 907 N.Y.S.2d 434

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.