NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Of course, in my view, the transcript must be requested. Although this extends the date of the submission of appeal statements, references must be made to the transcript and, as discussed earlier, it is important to ascertain whether the complete hearing has been transcribed.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Most important is Instruction 3:

"(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.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

The one time I was able to submit additional evidence without making a request was when the transcript revealed that an hour of testimony was missing and the testimony of one witness was omitted. In that case, my statement of appeal contained affidavits from both witnesses that they testified, that the transcript was not complete, etc.

A new hearing was, of course, ordered.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

More on Instruction 2:

"....The board will not consider any evidence not introduced at the administrative law judge hearing unless all parties consent or it is made part of the record at a further hearing. In its discretion the board may hold an additional hearing."

Thus, it is important to attempt to introduce all evidence Claimant feels is relevant at the ALJ hearing.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

More on Instruction 2:

"Section 463.3. Board hearing.

(a) Any party on the appeal may make application for a hearing before the board, setting forth the reasons therefore.

(b) At any hearing granted or directed by the board, the board may limit the parties to oral arguments or, in its discretion, may permit the calling of witnesses or the introduction of further evidence. Any party on the appeal may appear in person or be represented by an attorney or agent to present argument or further evidence. On its own motion, the board may require such appearances as it deems necessary. Within the limits set by the board when it determines to permit the calling of witnesses or the introduction of further evidence, all parties and their attorney or agent shall have the right to call, examine and cross-examine parties and witnesses, and shall have the right to offer relevant documents, records and other evidence which the board may only accept into the record pursuant to the provisions of section 463.2 of this Title or subdivision (c) of this section. Parties, or their attorney or agent, shall have the right, within the purposes of the hearing set by the board, to request that subpoenas be issued to compel the appearance of relevant witnesses or the production of relevant documents, records or other evidence. They have the right to request an adjournment of the hearing for good cause shown. Translation services shall be provided to parties in accordance with established legal requirements. During the conduct of the hearing, in accordance with established legal requirements, there shall be a translation of the entire proceeding and of all relevant parts of documents introduced into evidence. At the end of the hearing, and within the limits set by the board in determining the purpose of the hearing, each party has the right to make a relevant statement to explain or clarify relevant points which may not have been adequately developed during the hearing.

(c) The board shall consider and rely on only the evidence introduced at some hearing and those facts and law of which official notice has been taken. Official notice may be taken only in situations in which judicial notice might be taken in a court proceeding and in the same manner. The board shall not consider, rely on, or refer to any document which has not been:

(1) identified, with stated opportunity for any party to examine the document and comment, on the record; and

(2) accepted for the record during some hearing before the board or an administrative law judge.

(d) All testimony shall be under oath or by affirmation and a verbatim record of the proceedings shall be made. The board may accept written statements, records or other documents submitted by parties or their representatives in lieu of testimony.

(e) Under the direction of the board member presiding, a designated member of the board staff may assist him in the conduct of a hearing.

(f) The hearing shall be held at the office of the board at New York City or elsewhere in the State as the board may designate. In the discretion of the board, hearings may be held by means of telephone conference calls.

(g) A party requesting an adjournment must establish good cause for the request. The board may, on its own motion and for good cause, adjourn the hearing. Whenever the board determines that a hearing is to be adjourned, the board must set forth on the record what constitutes the reason and the good cause for the adjournment.

(h) During the conduct of a hearing before the board, any party may request that the hearing or parts thereof be closed to the public or request that documents or parts thereof be marked as confidential. When a request for closure or confidentiality is made, all present at the hearing shall be heard on the application. Upon a showing of good cause, the board may grant such closure or confidentiality. If granted, the record and case file shall be marked to show that there is an order of closure or confidentiality, and that order shall continue in effect unless otherwise determined as a result of judicial review."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

On Instruction 2:

"(2) The appeal board usually decides appeals without a new hearing. It relies on evidence taken at the administrative law judge hearing and the written arguments of the parties on appeal....."

In my experience, as discussed earlier, the only hearing I had with the appeal board dealt with the issue of whether the employer timely filed a notice of appeal and that hearing was held by telephone conference.

However, in my statement of appeal, I always set forth the following in my preliminary statement:

"On behalf of the claimant, I also request a hearing pursuant to section 463.3 of the Appeal Board rules."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

On Instruction 1:

"All communications should cite the above appeal number."

While I have found that it is possible for the Appeal Board to trace a matter through the Claimant's social security number, it is best to utilize the appeal number for any telephone or written communication with the Board.

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NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

This instruction is basically set forth in Appeal Board Regulation Section 463.1:

"(f) Notice of receipt of appeal.

The board shall send notice of receipt of appeal to the commissioner, the claimant, the employer and their duly designated representatives. Each notice of receipt of appeal to the board shall include the following statement and the parties shall be granted the following rights:

(1) All communications should cite the above appeal number.

(2) The appeal board usually decides appeals without a new hearing. It relies on evidence taken at the administrative law judge hearing and the written arguments of the parties on appeal. The board will not consider any evidence not introduced at the administrative law judge hearing unless all parties consent or it is made part of the record at a further hearing. In its discretion the board may hold an additional hearing.

(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.

(5) If another party submits statements, documents or briefs on this appeal, you will receive copies and will have 12 days to reply in writing. The 12 days to reply is measured from the date when the copies were mailed to you. A party may submit a reply at only one time. Subsequent replies will be returned to the party.

(6) Any party may make a written request for an extension of the above time limits to submit a statement, document, brief or reply. The request must give the specific reasons why the time limit cannot be met. Extensions will only be granted if the request establishes good cause to excuse the delay. Unless an extension has been granted, any submission mailed after the times specified here shall be returned to the party.

(7) Parties may be represented by lawyers or other persons of their choice on appeal before the appeal board. For representing a claimant, a lawyer or agent registered by the appeal board may charge a fee. Before the claimant pays the representative any fee, the fee must be approved by the appeal board. No other person may charge a fee for representing a claimant. If you do not have enough money to hire a lawyer or registered agent, you may be able to get one free through your local Legal Aid Society or Legal Services Program.

(8) If you have any questions, contact the board at the above address."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Note that at the Appeal Board's website, the FAQ on appeals also states:

"What happens after an appeal?

You are sent a notice of receipt of appeal with instructions about the appeal including how to submit a statement and how to ask to see the transcript of the hearing. This is true if you appealed or if the other side appealed."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

The reverse side of a Notice of Receipt of Appeal with some very important notices and instructions:

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

After a notice of appeal is filed, the Appeal Board sends a Notice of Receipt of Appeal. In this matter, note the adverse decision was filed May 30, 2012, the notice of appeal was sent the next day and the receipt was sent on June 15.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

This is my standard form Notice of Appeal:

"July XX, 2012

VIA MAIL & FAX – 5 PAGES

UNEMPLOYMENT INSURANCE APPEAL BOARD
PO BOX 15126
ALBANY, NY 12212-5126

Re: ALJ 012-XXXX IN RE XXXXX

Gentleman:

I am representing the claimant.

On behalf of the claimant, the claimant appeals, pursuant to section 621, subdivision 1 of the law, the attached decision by filing this 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.

On behalf of the claimant, I also request that the Appeal Board pursuant to Labor Law § 534 and section 463.6 of the Appeal Board rules reopen and reconsider the decision and to reconsider the issues in the case raised by a re-review of the file in accordance with the Stipulation and Order in Municipal Labor Comm. v Sitkin (US Dist Ct, SD NY, Dec. 19, 1997, Carter, J., 79 Civ.5899) and in the interests of justice.

I also request that, if the Appeals Board deems this insufficient, I be given additional time to submit additional documentation.

I also request a hearing pursuant to section 463.3 of the Appeal Board rules.

The reasons for the appeal are:

1. The decision is erroneous as a matter of law.

2. The decision is not supported by substantial evidence.

3. Conflicting evidence between the various witnesses presents credibility issues falling within the exclusive province of the Board, which is not obligated to adopt the Administrative Law Judge's contrary determination.


Sincerely,




Jon M. Probstein

Attachment: Adverse Decision

cc: Employer and employer attorney/representative"

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

However, I should note this:

In one matter in which I represented the claimant, after the ALJ reversed the DOL adverse determination, the employer appealed and hired an attorney to file the appeal. But the Appeal Board issued a letter stating that the notice was not timely filed and a hearing was held, by telephone, on the issue of whether the employer timely filed an appeal. The employer's attorney argued that the notice was timely sent but that the Appeal Board did not acknowledge receipt - or a "lost in the mail" argument. There were several phone hearings and the Appeal Board finally accepted the affidavit of service by the attorney's secretary and ruled the notice was filed in time.

But after the attorney for the employer reviewed the hearing transcript, the appeal was withdrawn and the claimant retained benefits.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Thus, and this was one of the purposes of this thread, I am unable to handle appeals on behalf of claimants when they receive an adverse decision from an ALJ - many times the claimant does not file a notice of appeal within the 20 day period.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

My general practice is to file a notice of appeal as follows:

As soon as I receive an adverse decision, immediately I file in writing, first by letter sent to the Appeal Board at PO Box 15126, Albany, NY 12212-5126 and then a copy by fax to 518 402-6208.

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NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

The Appeal Board rules state:

"Section 462.2. Notice of right of appeal.

The decision shall be accompanied by a notice of the right of appeal therefrom and the method by which such appeal may be taken."

"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."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

The pertinent statute is Labor Law 621 (1):

"§ 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."

HAPPY FOURTH OF JULY

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

See also Matter of Uwaezuoke, 2008 NY Slip Op 09882, 57 AD3d 1193 (3rd Dept. 2008):

"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 [*2]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, 38 days 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]).

Cardona, P.J., Spain, Rose, Kane and Kavanagh, JJ., concur. Ordered that the decision is affirmed, without costs.

Footnotes


Footnote *: 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."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

In Matter of Moorer, 40 AD3d 1335 [3rd Dept. 2007]:

"Although claimant stated at the hearing that he did not receive the decision of the Administrative Law Judge, he did not raise this issue in his brief and it is therefore deemed abandoned (see e.g Matter of Wayne [Commissioner of Labor], 261 AD2d 768, 769 [1999]"