Another strict interpretation of the time limit is found in In the Matter of Robert Green, NY Slip Op. 511792 (3rd Dept. September 22, 2011:
"Before: Mercure, J.P., Rose, Malone Jr., Stein and Garry, JJ.
Robert P. Green, Kenmore, appellant pro se.
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed May 27, 2010, which dismissed claimant's appeal from
a decision of the Administrative Law Judge as untimely.
Claimant was discharged from his position as an imaging
services attendant for insubordination. By decision dated and
filed on March 26, 2010, an Administrative Law Judge (hereinafter
ALJ) determined, among other things, that claimant lost his
employment through disqualifying misconduct. Claimant waited
until April 21, 2010 to appeal this decision. The Unemployment
Insurance Appeal Board declined to consider the appeal because it
was not timely filed, and claimant failed to offer a reasonable
excuse. Claimant now appeals from the Board's decision and 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 Averett
[Commissioner of Labor], 65 AD3d 1436, 1436-1437 [2009] [internal
quotation marks and citation omitted]; see Matter of Page
[Commissioner of Labor], 65 AD3d 722, 722-723 [2009]). Here,
claimant's excuse that he relied on his attorney to appeal the
ALJ's decision does not provide a basis to disturb the Board's
decision dismissing the appeal (see Matter of Harris
[Commissioner of Labor], 45 AD3d 1031, 1032 [2007]).
Consequently, claimant's arguments regarding the underlying
merits of the denial of his application for unemployment
insurance benefits are not properly before us (see id.).
Mercure, J.P., Rose, Malone Jr., Stein and Garry, JJ.,
concur.
ORDERED that the decision is affirmed, without costs."
Friday, June 29, 2012
Wednesday, June 27, 2012
NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD
The same rule was applied to appeals by employers:
"Matter of Pascarella (New York State Thruway Auth.) 2009 NY Slip Op 01269 [59 AD3d 835] (3rd Dept. 2009 )
Charles T. Randall, Albany, for appellant.
James W. Cooper, Warrensburg, for James J. Pascarella, respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 10, 2007, which dismissed the employer's appeal from a decision of the Administrative Law Judge as untimely.
By decision dated and mailed August 16, 2007, an Administrative Law Judge (hereinafter ALJ) overruled the initial determination finding, among other things, that claimant was disqualified from receiving unemployment insurance benefits because he had refused a suitable offer of employment, and awarded benefits. During a hearing to determine the timeliness of the employer's September 11, 2007 appeal, the employer's representatives admitted to receiving the ALJ's decision shortly after it was mailed but testified that the delay in requesting an appeal was due to the mistaken belief that the employer had 30 days, as opposed to 20 days, within which to do so. The Unemployment Insurance Appeal Board dismissed the employer'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 or personally delivered (see Matter of Uwaezuoke [Commissioner of Labor], 57 AD3d 1193 [2008]; Matter of Bottex [Commissioner of Labor], 48 AD3d 855, 856 [2008]), and the statutory time limit is strictly construed (see Matter of Moorer [Commissioner of Labor], 40 AD3d 1335 [2007]). Neither the [*2]employer's failure to fully read those portions of the ALJ's decision advising of the time period for filing an appeal (see Matter of Bottex [Commissioner of Labor], 48 AD3d at 856) nor its mistaken belief that it had more time to appeal (see Matter of Trinidad [Commissioner of Labor], 21 AD3d 1208, 1208-1209 [2005]) constitutes a reasonable excuse for failing to comply with the statutory time period. Accordingly, we discern no basis upon which to disturb the Board's decision dismissing the appeal as untimely (see Matter of Uwaezuoke [Commissioner of Labor], supra).
Cardona, P.J., Peters, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the decision is affirmed, without costs."
"Matter of Pascarella (New York State Thruway Auth.) 2009 NY Slip Op 01269 [59 AD3d 835] (3rd Dept. 2009 )
Charles T. Randall, Albany, for appellant.
James W. Cooper, Warrensburg, for James J. Pascarella, respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 10, 2007, which dismissed the employer's appeal from a decision of the Administrative Law Judge as untimely.
By decision dated and mailed August 16, 2007, an Administrative Law Judge (hereinafter ALJ) overruled the initial determination finding, among other things, that claimant was disqualified from receiving unemployment insurance benefits because he had refused a suitable offer of employment, and awarded benefits. During a hearing to determine the timeliness of the employer's September 11, 2007 appeal, the employer's representatives admitted to receiving the ALJ's decision shortly after it was mailed but testified that the delay in requesting an appeal was due to the mistaken belief that the employer had 30 days, as opposed to 20 days, within which to do so. The Unemployment Insurance Appeal Board dismissed the employer'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 or personally delivered (see Matter of Uwaezuoke [Commissioner of Labor], 57 AD3d 1193 [2008]; Matter of Bottex [Commissioner of Labor], 48 AD3d 855, 856 [2008]), and the statutory time limit is strictly construed (see Matter of Moorer [Commissioner of Labor], 40 AD3d 1335 [2007]). Neither the [*2]employer's failure to fully read those portions of the ALJ's decision advising of the time period for filing an appeal (see Matter of Bottex [Commissioner of Labor], 48 AD3d at 856) nor its mistaken belief that it had more time to appeal (see Matter of Trinidad [Commissioner of Labor], 21 AD3d 1208, 1208-1209 [2005]) constitutes a reasonable excuse for failing to comply with the statutory time period. Accordingly, we discern no basis upon which to disturb the Board's decision dismissing the appeal as untimely (see Matter of Uwaezuoke [Commissioner of Labor], supra).
Cardona, P.J., Peters, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the decision is affirmed, without costs."
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."
"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."
Friday, June 22, 2012
NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD
The statute provides as follows - Labor Law (emphasis supplied):
"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.
2. Contested determinations, rules, or orders. Within twenty days after the mailing or personal delivery of notice of the decision after a hearing on contested determinations, rules or orders by the commissioner, the employer may take an appeal to the appeal board, provided he appeared at the hearing, by filing a notice of appeal with the commissioner, and the commissioner may likewise within such period take an appeal to the board by giving written notice thereof to the employer, regardless of whether or not the commissioner appeared or was represented at the hearing before the referee.
3. Conduct of appeals. The appeal board may decide any case appealed to it under any provision of this article on the basis of the record and of evidence previously submitted in such case, or it may in its discretion hear argument or hold a further hearing, or remand such case to a referee for such purposes as it may direct. If a further hearing is to be held or argument had, the board shall fix a time therefor and shall notify the commissioner, regardless of whether or not he had appeared or been represented at the hearing before the referee, and any other party affected, provided such other party appeared at the hearing before the referee. The board may affirm or reverse, wholly or in part, or may modify the decision appealed from and shall render its decision promptly and shall thereupon send written notice thereof together with the reasons therefor to the commissioner and any other party affected thereby who appeared at the hearing before the referee.
§621 as amended by L. 1951, Ch. 645 effective June 4, 1951."
"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.
2. Contested determinations, rules, or orders. Within twenty days after the mailing or personal delivery of notice of the decision after a hearing on contested determinations, rules or orders by the commissioner, the employer may take an appeal to the appeal board, provided he appeared at the hearing, by filing a notice of appeal with the commissioner, and the commissioner may likewise within such period take an appeal to the board by giving written notice thereof to the employer, regardless of whether or not the commissioner appeared or was represented at the hearing before the referee.
3. Conduct of appeals. The appeal board may decide any case appealed to it under any provision of this article on the basis of the record and of evidence previously submitted in such case, or it may in its discretion hear argument or hold a further hearing, or remand such case to a referee for such purposes as it may direct. If a further hearing is to be held or argument had, the board shall fix a time therefor and shall notify the commissioner, regardless of whether or not he had appeared or been represented at the hearing before the referee, and any other party affected, provided such other party appeared at the hearing before the referee. The board may affirm or reverse, wholly or in part, or may modify the decision appealed from and shall render its decision promptly and shall thereupon send written notice thereof together with the reasons therefor to the commissioner and any other party affected thereby who appeared at the hearing before the referee.
§621 as amended by L. 1951, Ch. 645 effective June 4, 1951."
NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD
The timeliness of notice of appeals is set forth in the Appeal Board Rules and regulations:
"Section 463.1. Notice of appeal.
(a) Generally. In any notice of appeal, the party appealing should state the reasons therefore.
(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."
"Section 463.1. Notice of appeal.
(a) Generally. In any notice of appeal, the party appealing should state the reasons therefore.
(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."
Thursday, June 21, 2012
NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD
Thus, the first reason I am not able to handle appeals of hearings in which I was not counsel is that the claimant may not have timely filed a notice of appeal.
Wednesday, June 20, 2012
NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD
The process to the Appeal Board is just that - a process. And best to explain in laymen terms by utilizing the FAQ from the Appeal Board website:
"What can I do if I don't agree with the judge's decision?
If you were at the hearing and lost all or part of the case, you may file an appeal to the Appeal Board. The decision will contain instructions explaining how to file an appeal. You can appeal in writing, either by letter sent to the Appeal Board at PO Box 15126, Albany, NY 12212-5126, or by fax to 402-6208. Your letter must include the ALJ Case Number (which is listed on the decision above the claimant’s name).
An appeal must be postmarked or faxed no later than 20 days after the date printed or stamped on the front of the ALJ decision. The 20-day time period includes all weekends and holidays.
If you did not come to the hearing but believe you had a good reason for not being there, you can apply to reopen the case by writing to the Administrative Law Judge Section. You should include an explanation why you did not attend the hearing."
"What can I do if I don't agree with the judge's decision?
If you were at the hearing and lost all or part of the case, you may file an appeal to the Appeal Board. The decision will contain instructions explaining how to file an appeal. You can appeal in writing, either by letter sent to the Appeal Board at PO Box 15126, Albany, NY 12212-5126, or by fax to 402-6208. Your letter must include the ALJ Case Number (which is listed on the decision above the claimant’s name).
An appeal must be postmarked or faxed no later than 20 days after the date printed or stamped on the front of the ALJ decision. The 20-day time period includes all weekends and holidays.
If you did not come to the hearing but believe you had a good reason for not being there, you can apply to reopen the case by writing to the Administrative Law Judge Section. You should include an explanation why you did not attend the hearing."
Tuesday, June 19, 2012
NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD
Section 463.1 (f) of the Appeal Board rules provides in part (emphasis supplied):
"(3) Each of the parties may submit, in writing, requests to inspect the minutes of the hearing, or statements, documents or briefs to be considered in connection with this appeal. Two copies of such written requests, statements, documents or briefs must be mailed, within seven days from the date of this notice, addressed to the Unemployment Insurance Appeal Board, P.O. Box 15126, Albany, NY, 12212-5126. An attorney-at-law, or representative, must mail a copy of the statement, document or brief to each of the other parties, and their attorneys and representatives, and certify to the board that this has been done. Each party may submit such statement, document or brief only once. Subsequent statements, documents or briefs will be returned to the party.
(4) Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying."
"(3) Each of the parties may submit, in writing, requests to inspect the minutes of the hearing, or statements, documents or briefs to be considered in connection with this appeal. Two copies of such written requests, statements, documents or briefs must be mailed, within seven days from the date of this notice, addressed to the Unemployment Insurance Appeal Board, P.O. Box 15126, Albany, NY, 12212-5126. An attorney-at-law, or representative, must mail a copy of the statement, document or brief to each of the other parties, and their attorneys and representatives, and certify to the board that this has been done. Each party may submit such statement, document or brief only once. Subsequent statements, documents or briefs will be returned to the party.
(4) Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying."
Monday, June 18, 2012
NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD
This is a standard response letter to claimants and this next series of blog posts will discuss the reasons why:
"Hi:
Unfortunately I am not able to handle appeals of hearings in which I was not counsel.
Best of luck.
Jon Michael Probstein, Esq.
21 Turn Lane
Levittown, NY 17756
Web: www.jmpattorney.com
Email: jmp@jmpattorney.com
Phone 212 972-3250
Fax 212 202-6495
LEGAL NOTICE
Unless expressly stated otherwise, this message is confidential and may be privileged. It is intended for the addressee(s) only. Access to this message by anyone else is unauthorized. If you are not an addressee, any disclosure or copying of the contents of this message or any action taken (or not taken) in reliance on it is unauthorized and may be unlawful. If you are not an addressee, please inform the sender immediately."
"Hi:
Unfortunately I am not able to handle appeals of hearings in which I was not counsel.
Best of luck.
Jon Michael Probstein, Esq.
21 Turn Lane
Levittown, NY 17756
Web: www.jmpattorney.com
Email: jmp@jmpattorney.com
Phone 212 972-3250
Fax 212 202-6495
LEGAL NOTICE
Unless expressly stated otherwise, this message is confidential and may be privileged. It is intended for the addressee(s) only. Access to this message by anyone else is unauthorized. If you are not an addressee, any disclosure or copying of the contents of this message or any action taken (or not taken) in reliance on it is unauthorized and may be unlawful. If you are not an addressee, please inform the sender immediately."
Friday, June 15, 2012
Thursday, June 14, 2012
MORTGAGES AND BLACKLISTING
In 2008, the Wall Street Journal reported:
"In the nation’s worst-hit real-estate markets, home sellers are suffering a new blow: They are being blacklisted by lenders. As property values decline and credit markets contract, home lenders nationwide are growing ever more unwilling to finance home purchases in sharply declining housing markets, driving prices down further. In some cases, lenders have ruled out entire geographic regions and property types altogether, most notably high-rise condominiums in South Florida and Las Vegas."
Recently, I am hearing reports of "blacklisting" in New York with respect to vacation and/or second home properties. It can be argued that such a practice is similar to "redlining":
"Other forms of redlining include the nullification of mortgage loans based on internal bank policies and procedures that fail to recognize complex property types. Co-Op and Condo Conversions in New York City are one such example. These building types are often made up of legacy rent controlled and rent stabilized units or may contain another protected class of tenant. Lenders who practice redlining often cite sponsor concentration or high rental concentration as an excuse to redline the property type. Such internal policies run counter to state and municipal laws and statutes, and are an illegal form of silent judgment on the economic and racial makeup of a building."
"In the nation’s worst-hit real-estate markets, home sellers are suffering a new blow: They are being blacklisted by lenders. As property values decline and credit markets contract, home lenders nationwide are growing ever more unwilling to finance home purchases in sharply declining housing markets, driving prices down further. In some cases, lenders have ruled out entire geographic regions and property types altogether, most notably high-rise condominiums in South Florida and Las Vegas."
Recently, I am hearing reports of "blacklisting" in New York with respect to vacation and/or second home properties. It can be argued that such a practice is similar to "redlining":
"Other forms of redlining include the nullification of mortgage loans based on internal bank policies and procedures that fail to recognize complex property types. Co-Op and Condo Conversions in New York City are one such example. These building types are often made up of legacy rent controlled and rent stabilized units or may contain another protected class of tenant. Lenders who practice redlining often cite sponsor concentration or high rental concentration as an excuse to redline the property type. Such internal policies run counter to state and municipal laws and statutes, and are an illegal form of silent judgment on the economic and racial makeup of a building."
Wednesday, June 13, 2012
MORTGAGE FORECLOSURE
At Nassau County Bar Association for further training session co-sponsored with Empire Justice Center for Representing Homeowners in Mortgage Foreclosure Proceedings:
"Residential foreclosures continue to plague New York State. This training will cover basics for representing homeowners, including fundamentals of New York’s foreclosure process, the mandatory settlement conference requirements, the federal Home Affordable Modification Program (HAMP) and other loss mitigation options, and New York’s mortgage servicing regulations and recent Agreements with mortgage servicers. Current delinquency and foreclosure data for New York State will be presented as well."
"Residential foreclosures continue to plague New York State. This training will cover basics for representing homeowners, including fundamentals of New York’s foreclosure process, the mandatory settlement conference requirements, the federal Home Affordable Modification Program (HAMP) and other loss mitigation options, and New York’s mortgage servicing regulations and recent Agreements with mortgage servicers. Current delinquency and foreclosure data for New York State will be presented as well."
Tuesday, June 12, 2012
ATTORNEY FEE DISPUTE RESOLUTION
Attending a PART 137 ARBITRATION TRAINING:
"It is the policy of the Courts of the County of Nassau, Tenth Judicial District (“Courts of Nassau County”), to encourage out-of court resolution of fee disputes between attorneys and clients in a fair, impartial and efficient manner. The Administrative Judge of the County of Nassau, Tenth Judicial District, is designated as the Administrator of the Attorney-Client Fee Dispute Resolution Program for the Courts of the County of Nassau under these Rules and may delegate duties to such officers, committees, and employees as he/she may direct."
"It is the policy of the Courts of the County of Nassau, Tenth Judicial District (“Courts of Nassau County”), to encourage out-of court resolution of fee disputes between attorneys and clients in a fair, impartial and efficient manner. The Administrative Judge of the County of Nassau, Tenth Judicial District, is designated as the Administrator of the Attorney-Client Fee Dispute Resolution Program for the Courts of the County of Nassau under these Rules and may delegate duties to such officers, committees, and employees as he/she may direct."
Monday, June 11, 2012
MORTGAGE FORECLOSURE CLINIC FOR HOMEOWNERS
Today I will be a volunteer attorney at the Nassau County Bar Association Free Mortgage Foreclosure Clinic, described as follows from their website:
"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. Attorneys fluent in other languages are available upon request when reserving.
All clinics are 3-6 p.m. and are held at the Nassau County Bar Association in Mineola."
Friday, June 8, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
Two Appellate Division cases should be noted. First:
"IN RE CZOSEK, 71 A.D.3d 1359 900 N.Y.S.2d 154[3d Dept 2010]
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 10, 2009, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because his employment was terminated due to misconduct.
Paul V. Czosek, Sloan, appellant pro se.
Jaeckle, Fleischmann & Mugel, Buffalo
(Matthew C. Van Vessem of counsel), for Cheektowaga-Sloan Union Free School
District, respondent.
Andrew M. Cuomo, Attorney General, New York City
(Gary Leibowitz of counsel), for Commissioner of Labor, respondent.
Before: Cardona, P.J., Spain, Lahtinen, Kavanagh and
McCarthy, JJ., concur.
Claimant worked as a special education teacher for a school
district for over 20 years. In May 2006, the district
brought disciplinary charges against him pursuant to Education
Law § 3020-a and sought his termination. Thereafter, a
hearing was conducted before a Hearing Officer who sustained a
number of the charges, including that claimant inappropriately
shouted at the school principal in the presence of students and
staff, left students in his classroom unsupervised and engaged
in sexual harassment. The Hearing Officer concluded, based upon
the evidence presented, that claimant's termination was
warranted. Claimant was discharged as a result. The
Unemployment Insurance Appeal Board subsequently ruled that he
was disqualified from receiving unemployment insurance benefits
because his employment was terminated due to misconduct.
Claimant now appeals.
We affirm. Initially, we note that the factual findings of the
Hearing Officer are entitled to collateral estoppel effect
inasmuch as claimant was present at the Education Law
§ 3020-a hearing and had a full and fair opportunity to be heard
with respect to the charges of misconduct forming the basis for
his dismissal (see Matter of Davis [Commissioner of
Labor], 64 AD3d 1057, 1057-1058 [2009], lv denied
14 NY3d 703 [2010]; Matter of Goulbourne [Commissioner of
Labor], 18 AD3d 1087, 1087 [2005]). Accepting those
findings, "[a]n employee's actions that are contrary to
established policies and have a detrimental effect upon an
employer's interests have been found to constitute
disqualifying misconduct" (Matter of Cody [New York City
Dept. of Educ. — Commissioner of Labor],
37 AD3d 920, 920 [2007]; see Matter of Bohmann [Commissioner of
Labor], 29 AD3d 1250, 1251 [2006]). Substantial evidence
supports the Board's decision here given that the conduct
providing the basis for claimant's termination violated the
employer's policies and was clearly detrimental to its
interests. Therefore, we find no reason to disturb the Board's
decision.
Ordered that the decision is affirmed, without costs."
"IN RE CZOSEK, 71 A.D.3d 1359 900 N.Y.S.2d 154[3d Dept 2010]
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 10, 2009, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because his employment was terminated due to misconduct.
Paul V. Czosek, Sloan, appellant pro se.
Jaeckle, Fleischmann & Mugel, Buffalo
(Matthew C. Van Vessem of counsel), for Cheektowaga-Sloan Union Free School
District, respondent.
Andrew M. Cuomo, Attorney General, New York City
(Gary Leibowitz of counsel), for Commissioner of Labor, respondent.
Before: Cardona, P.J., Spain, Lahtinen, Kavanagh and
McCarthy, JJ., concur.
Claimant worked as a special education teacher for a school
district for over 20 years. In May 2006, the district
brought disciplinary charges against him pursuant to Education
Law § 3020-a and sought his termination. Thereafter, a
hearing was conducted before a Hearing Officer who sustained a
number of the charges, including that claimant inappropriately
shouted at the school principal in the presence of students and
staff, left students in his classroom unsupervised and engaged
in sexual harassment. The Hearing Officer concluded, based upon
the evidence presented, that claimant's termination was
warranted. Claimant was discharged as a result. The
Unemployment Insurance Appeal Board subsequently ruled that he
was disqualified from receiving unemployment insurance benefits
because his employment was terminated due to misconduct.
Claimant now appeals.
We affirm. Initially, we note that the factual findings of the
Hearing Officer are entitled to collateral estoppel effect
inasmuch as claimant was present at the Education Law
§ 3020-a hearing and had a full and fair opportunity to be heard
with respect to the charges of misconduct forming the basis for
his dismissal (see Matter of Davis [Commissioner of
Labor], 64 AD3d 1057, 1057-1058 [2009], lv denied
14 NY3d 703 [2010]; Matter of Goulbourne [Commissioner of
Labor], 18 AD3d 1087, 1087 [2005]). Accepting those
findings, "[a]n employee's actions that are contrary to
established policies and have a detrimental effect upon an
employer's interests have been found to constitute
disqualifying misconduct" (Matter of Cody [New York City
Dept. of Educ. — Commissioner of Labor],
37 AD3d 920, 920 [2007]; see Matter of Bohmann [Commissioner of
Labor], 29 AD3d 1250, 1251 [2006]). Substantial evidence
supports the Board's decision here given that the conduct
providing the basis for claimant's termination violated the
employer's policies and was clearly detrimental to its
interests. Therefore, we find no reason to disturb the Board's
decision.
Ordered that the decision is affirmed, without costs."
Thursday, June 7, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
Two more Appeal Board cases where sexual harassment was not found:
Mailed and Filed: JULY 28, 2011 IN THE MATTER OF: Appeal Board No. 554358
"Accordingly, we conclude that although the claimant's personal involvement with a co-worker may have been ill-advised, and while he may have demonstrated poor judgment by raising questions about the work ethics of the co-worker to her supervisors, the claimant's behavior fell short of sexual harassment and does not rise to the level of misconduct for purposes of Unemployment Insurance."
Mailed and Filed: DECEMBER 09, 2008 IN THE MATTER OF: Appeal Board No. 542117
"In any event, not all physical contact between male and female coworkers amounts to sexual harassment. The testimony of the manager that the female coworker's complaint to him indicated she did not want to be touched is insufficient."
Mailed and Filed: JULY 28, 2011 IN THE MATTER OF: Appeal Board No. 554358
"Accordingly, we conclude that although the claimant's personal involvement with a co-worker may have been ill-advised, and while he may have demonstrated poor judgment by raising questions about the work ethics of the co-worker to her supervisors, the claimant's behavior fell short of sexual harassment and does not rise to the level of misconduct for purposes of Unemployment Insurance."
Mailed and Filed: DECEMBER 09, 2008 IN THE MATTER OF: Appeal Board No. 542117
"In any event, not all physical contact between male and female coworkers amounts to sexual harassment. The testimony of the manager that the female coworker's complaint to him indicated she did not want to be touched is insufficient."
Wednesday, June 6, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
In this case, the Appeal Board appears to set the standard that the conduct must be offensive to a reasonable person to be misconduct (emphasis supplied):
"Mailed and Filed: JANUARY 08, 2010
IN THE MATTER OF: Appeal Board No. 547526
OPINION: The credible evidence establishes that the claimant violated the employer's zero tolerance policy regarding sexual harassment and sexual discrimination by making lewd sexual comments and gestures toward a male subordinate and two female subordinates. In reaching this conclusion, it is noted that the female subordinate, who was later promoted, gave credible first hand testimony that over a period of months the claimant made lewd sexual comments and gestures and propositioned her for sexual relations. We find the testimony of this female subordinate to be credible because although she is no longer working for the employer she was willing to testify with particularity about the lewd sexual remarks and gestures made by the claimant. Because the claimant demonstrated a pattern of sexually inappropriate behavior towards the female subordinate who was later promoted, we credit the hearsay testimony of the employer over the claimant's self-serving denial of wrong doing with respect to the other female subordinate and the male subordinate. The claimant was aware of the employer's sexual harassment and sexual discrimination policy and signed an acknowledgement of this policy. Claimant's behavior demonstrated a pattern of sexually offensive actions towards subordinates and clearly violated the employer's zero tolerance policy for sexual harassment and discrimination. His conduct was offensive to a reasonable person. Even if the subordinates did not object to the claimant's behavior, as a manager the claimant knew or should have known that offensive remarks in the workplace are inappropriate.(AB No. 503568; AB No. 519706) The claimant's behavior was contrary to the employer's interests and fostered a hostile and intimidating work environment. Under the circumstances, the claimant's actions rise to the level of misconduct. Accordingly we conclude that the claimant was separated from his employment under disqualifying circumstances."
"Mailed and Filed: JANUARY 08, 2010
IN THE MATTER OF: Appeal Board No. 547526
OPINION: The credible evidence establishes that the claimant violated the employer's zero tolerance policy regarding sexual harassment and sexual discrimination by making lewd sexual comments and gestures toward a male subordinate and two female subordinates. In reaching this conclusion, it is noted that the female subordinate, who was later promoted, gave credible first hand testimony that over a period of months the claimant made lewd sexual comments and gestures and propositioned her for sexual relations. We find the testimony of this female subordinate to be credible because although she is no longer working for the employer she was willing to testify with particularity about the lewd sexual remarks and gestures made by the claimant. Because the claimant demonstrated a pattern of sexually inappropriate behavior towards the female subordinate who was later promoted, we credit the hearsay testimony of the employer over the claimant's self-serving denial of wrong doing with respect to the other female subordinate and the male subordinate. The claimant was aware of the employer's sexual harassment and sexual discrimination policy and signed an acknowledgement of this policy. Claimant's behavior demonstrated a pattern of sexually offensive actions towards subordinates and clearly violated the employer's zero tolerance policy for sexual harassment and discrimination. His conduct was offensive to a reasonable person. Even if the subordinates did not object to the claimant's behavior, as a manager the claimant knew or should have known that offensive remarks in the workplace are inappropriate.(AB No. 503568; AB No. 519706) The claimant's behavior was contrary to the employer's interests and fostered a hostile and intimidating work environment. Under the circumstances, the claimant's actions rise to the level of misconduct. Accordingly we conclude that the claimant was separated from his employment under disqualifying circumstances."
Tuesday, June 5, 2012
NEW YORK UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION - CHANGE IN EMPLOYMENT TERMS
A very interesting column appeared in today's Newsday regarding the right to unemployment insurance when an employer announces that compensation and other terms of employment have changed.
NEWSDAY - Help Wanted: Signing a noncompete agreement June 4, 2012 By CARRIE MASON-DRAFFEN
NEWSDAY - Help Wanted: Signing a noncompete agreement June 4, 2012 By CARRIE MASON-DRAFFEN
Monday, June 4, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
Recently, the Appeal Board was faced with a clear example of sexual harassment - in this case it appeared to be same sex harassment:
"Mailed and Filed: MAY 21, 2012
IN THE MATTER OF: Appeal Board No. 562722
.....The findings of fact and the opinion of the Administrative Law Judge are fully supported by the record and,therefore, are adopted as the findings of fact and the opinion of the Board, except we further note the claimant intentionally and inappropriately touched her co-worker's breast in violation of the employer's harassment policy and intentionally continued to touch the co-worker inappropriately after the co-worker indicated the claimant's actions were sexual harassment; and therefore, the claimant's actions rise to the level of misconduct."
"Mailed and Filed: MAY 21, 2012
IN THE MATTER OF: Appeal Board No. 562722
.....The findings of fact and the opinion of the Administrative Law Judge are fully supported by the record and,therefore, are adopted as the findings of fact and the opinion of the Board, except we further note the claimant intentionally and inappropriately touched her co-worker's breast in violation of the employer's harassment policy and intentionally continued to touch the co-worker inappropriately after the co-worker indicated the claimant's actions were sexual harassment; and therefore, the claimant's actions rise to the level of misconduct."
Friday, June 1, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
In this case, the Board held that a finding of misconduct in a sexual harssment case required more than hearsay evidence:
"Mailed and Filed: JANUARY 27, 2012
IN THE MATTER OF: Appeal Board No. 553656
PRESENT: GEORGE FRIEDMAN, LEONARD D. POLLETTA MEMBERS
The Department of Labor issued the initial determination holding the claimant eligible to receive benefits, effective March 29, 2010. The employer requested a hearing and objected contending that the claimant should be disqualified from receiving benefits because the claimant lost employment through misconduct in connection with that employment and that wages paid to the claimant by such employer should not count in determining whether the claimant files a valid original claim in the future.The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed August 19, 2010 (), the Administrative Law Judge granted the employer's application to reopen 010-18142,sustained, effective March 30, 2010 the employer's objection and overruled the initial determination.The claimant appealed the Judge's decision to the Appeal Board. Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked full time as a child care worker in a residence for 13-to-18 year-old emotionally disturbed residents of a child welfare agency from January 23, 2006 until March 30, 2010. She reported directly to the program manager. She was aware of the training on the "Direct Care Worker as Role Model"which states in part, "It is our responsibility to demonstrate appropriate behavior for the residents. We all need to be mindful of our own behavior. We are all responsible for using appropriate language, refraining from cursing, following established rules, policies and procedures and following the dress code." She was made aware of the sexual harassment policy which addressed how to treat fellow employees. She received a final written warning on August 28, 2008 for a verbal altercation with a female co-worker. She was told that as an agency employee she was expected to "...treat all clients, visitors and agency employees in a professional manner at all times. Any further incidents involving verbal and / or physical altercations or threats of verbal or physical harm may result in further disciplinary action, including termination." She had not been warned for making inappropriate comments to the residents.In March 2010, the claimant was upset that two female co-workers were commenting on her personal life to a 16-year-old resident. She was upset with the female co-workers, not the resident, about gossiping about her life. She met with her supervisor on Wednesday,March 24, 2010 after a basketball game to report her concerns about her coworkers gossiping about her with this resident. Nothing was done about the situation. On Sunday,March 28, 2010, the supervisor was in his office doing a clothing inventory. He did not speak with the claimant about a resident's complaint.On March 29, the program manager told his own supervisor, a clinician, that he, the program manager had confronted the claimant after an emotionally disturbed, 16-year-old resident complained to him that the claimant had told him in the cafeteria, "That's [this is]why I hate faggots" in the context of the gossip about her marriage and pregnancy among the two female co-workers and this resident. The clinician then shared with the manager that he had heard that the claimant allegedly made another inappropriate comment. On March 30, 2010, the claimant was discharged for making inappropriate comments in front of vulnerable residents. The claimant did not make the remarks. The employer was unable to appear at the hearing scheduled for July 2, 2010 because the Human Resources Senior Vice President, the employer's hearing representative, had a sudden, severe asthma attack, and she could not appear. The employer applied to reopen by letter dated July 13, 2010.
OPINION: The credible evidence establishes that the employer did not appear at the hearing scheduled for July 2, 2010 in 010-18142 because the employer's vice president of human resources had a severe medical condition preventing her appearance.Accordingly, we conclude that the employer had good cause for its failure to appear and the application to reopen is granted.The credible evidence further establishes that the claimant was discharged because the employer believed that the claimant had made inappropriate comments to its vulnerable,adolescent residents. We are not persuaded by the program manager's contention that on March 28, 2010, the claimant allegedly "took a deep breath", admitted to the supervisor having said, "That's [this is] why I hate faggots" to the 16-year-old resident because she was having a bad day and then apologized to him. The program manager had qualified his testimony about his alleged conversation with the claimant with the phrase, "if I can recall". Significantly, there is no independent corroboration of the content of their alleged conversation on March 28, 2010. We also cannot credit his third-hand testimony about what the claimant allegedly stated in front of the other residents. We note that he could not remember what the clinician told him that the claimant had allegedly said to them and then said the specifics were not relayed to him. The complaining resident was not produced to testify, even by telephone. Therefore, we conclude that the program manager's testimony is not reliable or credible. Rather, we credit the claimant's consistent, sworn testimony that she had not made the alleged remarks over the program manager's hearsay testimony that she did so. Further, we are not persuaded by the vice president's testimony that one of the employees was upset about overhearing the claimant allegedly making inappropriate remarks to the other residents who told other staff members who then reported it to her. We conclude that the vice president produced nothing more than third-hand testimony and evidence to support the allegations against the claimant. Finally, we note that the complaining employee and the clinician were not produced. Given the serious nature of these allegations, we conclude that there is insufficient evidence to sustain the initial determination of misconduct. Accordingly, we conclude that the claimant lost her job under nondisqualifying conditions and is eligible for benefits.
DECISION: The decision of the Administrative Law Judge is modified as follows and, as so modified, is affirmed.The employer's application to reopen 010-18142 is granted.The employer's objection, that the claimant should be disqualified from receiving benefits because the claimant lost employment through misconduct in connection with that employment and that wages paid to the claimant by such employer should not count in determining whether the claimant files a valid original claim in the future, is overruled.The initial determination, holding the claimant eligible to receive benefits, effective March29, 2010, is sustained.The claimant is allowed benefits with respect to the issues decided herein.
GEORGE FRIEDMAN, MEMBER LEONARD D. POLLETTA, MEMBER"
"Mailed and Filed: JANUARY 27, 2012
IN THE MATTER OF: Appeal Board No. 553656
PRESENT: GEORGE FRIEDMAN, LEONARD D. POLLETTA MEMBERS
The Department of Labor issued the initial determination holding the claimant eligible to receive benefits, effective March 29, 2010. The employer requested a hearing and objected contending that the claimant should be disqualified from receiving benefits because the claimant lost employment through misconduct in connection with that employment and that wages paid to the claimant by such employer should not count in determining whether the claimant files a valid original claim in the future.The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed August 19, 2010 (), the Administrative Law Judge granted the employer's application to reopen 010-18142,sustained, effective March 30, 2010 the employer's objection and overruled the initial determination.The claimant appealed the Judge's decision to the Appeal Board. Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked full time as a child care worker in a residence for 13-to-18 year-old emotionally disturbed residents of a child welfare agency from January 23, 2006 until March 30, 2010. She reported directly to the program manager. She was aware of the training on the "Direct Care Worker as Role Model"which states in part, "It is our responsibility to demonstrate appropriate behavior for the residents. We all need to be mindful of our own behavior. We are all responsible for using appropriate language, refraining from cursing, following established rules, policies and procedures and following the dress code." She was made aware of the sexual harassment policy which addressed how to treat fellow employees. She received a final written warning on August 28, 2008 for a verbal altercation with a female co-worker. She was told that as an agency employee she was expected to "...treat all clients, visitors and agency employees in a professional manner at all times. Any further incidents involving verbal and / or physical altercations or threats of verbal or physical harm may result in further disciplinary action, including termination." She had not been warned for making inappropriate comments to the residents.In March 2010, the claimant was upset that two female co-workers were commenting on her personal life to a 16-year-old resident. She was upset with the female co-workers, not the resident, about gossiping about her life. She met with her supervisor on Wednesday,March 24, 2010 after a basketball game to report her concerns about her coworkers gossiping about her with this resident. Nothing was done about the situation. On Sunday,March 28, 2010, the supervisor was in his office doing a clothing inventory. He did not speak with the claimant about a resident's complaint.On March 29, the program manager told his own supervisor, a clinician, that he, the program manager had confronted the claimant after an emotionally disturbed, 16-year-old resident complained to him that the claimant had told him in the cafeteria, "That's [this is]why I hate faggots" in the context of the gossip about her marriage and pregnancy among the two female co-workers and this resident. The clinician then shared with the manager that he had heard that the claimant allegedly made another inappropriate comment. On March 30, 2010, the claimant was discharged for making inappropriate comments in front of vulnerable residents. The claimant did not make the remarks. The employer was unable to appear at the hearing scheduled for July 2, 2010 because the Human Resources Senior Vice President, the employer's hearing representative, had a sudden, severe asthma attack, and she could not appear. The employer applied to reopen by letter dated July 13, 2010.
OPINION: The credible evidence establishes that the employer did not appear at the hearing scheduled for July 2, 2010 in 010-18142 because the employer's vice president of human resources had a severe medical condition preventing her appearance.Accordingly, we conclude that the employer had good cause for its failure to appear and the application to reopen is granted.The credible evidence further establishes that the claimant was discharged because the employer believed that the claimant had made inappropriate comments to its vulnerable,adolescent residents. We are not persuaded by the program manager's contention that on March 28, 2010, the claimant allegedly "took a deep breath", admitted to the supervisor having said, "That's [this is] why I hate faggots" to the 16-year-old resident because she was having a bad day and then apologized to him. The program manager had qualified his testimony about his alleged conversation with the claimant with the phrase, "if I can recall". Significantly, there is no independent corroboration of the content of their alleged conversation on March 28, 2010. We also cannot credit his third-hand testimony about what the claimant allegedly stated in front of the other residents. We note that he could not remember what the clinician told him that the claimant had allegedly said to them and then said the specifics were not relayed to him. The complaining resident was not produced to testify, even by telephone. Therefore, we conclude that the program manager's testimony is not reliable or credible. Rather, we credit the claimant's consistent, sworn testimony that she had not made the alleged remarks over the program manager's hearsay testimony that she did so. Further, we are not persuaded by the vice president's testimony that one of the employees was upset about overhearing the claimant allegedly making inappropriate remarks to the other residents who told other staff members who then reported it to her. We conclude that the vice president produced nothing more than third-hand testimony and evidence to support the allegations against the claimant. Finally, we note that the complaining employee and the clinician were not produced. Given the serious nature of these allegations, we conclude that there is insufficient evidence to sustain the initial determination of misconduct. Accordingly, we conclude that the claimant lost her job under nondisqualifying conditions and is eligible for benefits.
DECISION: The decision of the Administrative Law Judge is modified as follows and, as so modified, is affirmed.The employer's application to reopen 010-18142 is granted.The employer's objection, that the claimant should be disqualified from receiving benefits because the claimant lost employment through misconduct in connection with that employment and that wages paid to the claimant by such employer should not count in determining whether the claimant files a valid original claim in the future, is overruled.The initial determination, holding the claimant eligible to receive benefits, effective March29, 2010, is sustained.The claimant is allowed benefits with respect to the issues decided herein.
GEORGE FRIEDMAN, MEMBER LEONARD D. POLLETTA, MEMBER"
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