Magee v Magee 2014 NY Slip Op 05163 Decided on July 9, 2014 Appellate Division, Second Department (emphasis supplied)
""Modification of an existing visitation arrangement is permissible only upon the showing of a material change of circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" (Vaccaro v Vaccaro, 83 AD3d 691). "[O]ne who seeks a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing" (Matter of Collazo v Collazo, 78 AD3d 1177). Contrary to the father's contention, the Supreme Court properly denied, without a hearing, his motion to modify the provisions of the parties' stipulation of settlement regarding custody and visitation (see Matter of Sullivan v Moore, 95 AD3d 1223; Matter of Francois v Grimm, 84 AD3d 1082; Matter of Figueroa v Lewis, 81 AD3d 823; Matter of Mazurkiewicz v Pindor-Mazurkiewicz, 80 AD3d 615, 616). The father's assertions were unsubstantiated and conclusory or did not allege a material change in circumstances. Accordingly, he failed to make the requisite showing (see Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638; Matter of Aronowich-Culhane v Forunier, 94 AD3d 1114, 1115)."
Showing posts with label Request For Hearing. Show all posts
Showing posts with label Request For Hearing. Show all posts
Wednesday, October 1, 2014
Saturday, August 7, 2010
UNEMPLOYMENT INSURANCE - LATE REQUEST FOR HEARING
On the issue of a Claimant's timely request for a hearing, I reported on a June 27 Blog that Claimants must have a mental or physical disability as an excuse for any delay:
"IN MATTER OF WRIGHT v. COMM. OF LABOR, 2010 NY Slip Op 02054, 895 N.Y.S.2d 886 [3d Dept 3-18-2010]
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 18, 2009, which ruled that claimant's request for a hearing request 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.
MEMORANDUM AND ORDER
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."
Today, I received a favorable decision from the Appeals Board. In this matter, Claimant did not file a request for a hearing within 30 days of the issuance of the initial determination disqualifying the Claimant for misconduct. Claimant was terminated for alleged misconduct, criminal charges were filed but eventually dismissed, but as a result, Claimant became homeless and was diagnosed with symptoms of various mental illnesses, none of which was brought up at the hearing which was attended by Claimant, without counsel, and by the Employer. The DOL also objected based on timeliness and the ALJ issued an adverse determination against Claimant on the grounds of timeliness. I then came on and filed an appeal. The Appeals Board, after several months, has finally issued an opinion and remanded the case to the ALJ for a rehearing on all issues.
"IN MATTER OF WRIGHT v. COMM. OF LABOR, 2010 NY Slip Op 02054, 895 N.Y.S.2d 886 [3d Dept 3-18-2010]
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 18, 2009, which ruled that claimant's request for a hearing request 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.
MEMORANDUM AND ORDER
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."
Today, I received a favorable decision from the Appeals Board. In this matter, Claimant did not file a request for a hearing within 30 days of the issuance of the initial determination disqualifying the Claimant for misconduct. Claimant was terminated for alleged misconduct, criminal charges were filed but eventually dismissed, but as a result, Claimant became homeless and was diagnosed with symptoms of various mental illnesses, none of which was brought up at the hearing which was attended by Claimant, without counsel, and by the Employer. The DOL also objected based on timeliness and the ALJ issued an adverse determination against Claimant on the grounds of timeliness. I then came on and filed an appeal. The Appeals Board, after several months, has finally issued an opinion and remanded the case to the ALJ for a rehearing on all issues.
Friday, August 6, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
There is one recent case from the Appellate Division, 3rd Department that discusses the issue of a default by Employer:
"IN RE KHAN, 66 A.D.3d 1098, 886 N.Y.S.2d 776 [3d Dept 2009]
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 25, 2008, which ruled that Mirage Limousine Service, Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others
similarly situated.
Law Offices of G. Oliver Koppell & Associates, New York City (G. Oliver Koppell of counsel), for appellant.
McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for Mohamed M. Khan, respondent.
Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.
Before: Mercure, J.P., Lahtinen, McCarthy and Garry, JJ., concur.
Kane, J.
Mirage Limousine Service, Inc. operates a black car limousine business that provides its clients transportation to and from prescribed destinations. In separate decisions, the Unemployment Insurance Appeal Board determined that an employer-employee relationship existed between Mirage and claimant, a limousine driver, and others similarly situated and assessed Mirage additional unemployment insurance contributions. Mirage now appeals both decisions.
We affirm. Initially, Mirage contends that it was deprived of its due process rights by the Administrative Law Judge's denial of its request for an adjournment of the initial hearing on this matter in order to obtain counsel. We disagree. Although notice of the hearing date was given only a week before the hearing, Mirage was aware of its need for counsel when it requested the hearing months earlier. A review of the record indicates that Mirage was afforded the opportunity, both prior to and at the start of the hearing, to either withdraw from the hearing and obtain counsel, with the understanding that a default judgment would be entered against it, or to continue with the hearing without representation. It was further explained that if Mirage withdrew its appearance from the hearing, it would then be able to move to reopen the matter once counsel had been obtained, and a new hearing would be held if the motion were granted. Mirage then decided to proceed with the hearing without counsel. Under these circumstances, we cannot conclude that Mirage was deprived
of due process (see Matter of Crisalli [Commissioner of Labor], 279 AD2d 925, 925 [2001]; Matter of Palmer [Rescue Mission Alliance of Syracuse — Commissioner of Labor], 273 AD2d 525, 525-526 [2000]).
........"
What is important in this decision, for both Employers and Claimants, is that the time to get an attorney is when you request a hearing, and do not wait until you get the notice of the hearing date. Of course, in this matter, the court notes that the Employer could have defaulted and moved to reopen - but here the Employer chose to proceed without counsel.
"IN RE KHAN, 66 A.D.3d 1098, 886 N.Y.S.2d 776 [3d Dept 2009]
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 25, 2008, which ruled that Mirage Limousine Service, Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others
similarly situated.
Law Offices of G. Oliver Koppell & Associates, New York City (G. Oliver Koppell of counsel), for appellant.
McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for Mohamed M. Khan, respondent.
Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.
Before: Mercure, J.P., Lahtinen, McCarthy and Garry, JJ., concur.
Kane, J.
Mirage Limousine Service, Inc. operates a black car limousine business that provides its clients transportation to and from prescribed destinations. In separate decisions, the Unemployment Insurance Appeal Board determined that an employer-employee relationship existed between Mirage and claimant, a limousine driver, and others similarly situated and assessed Mirage additional unemployment insurance contributions. Mirage now appeals both decisions.
We affirm. Initially, Mirage contends that it was deprived of its due process rights by the Administrative Law Judge's denial of its request for an adjournment of the initial hearing on this matter in order to obtain counsel. We disagree. Although notice of the hearing date was given only a week before the hearing, Mirage was aware of its need for counsel when it requested the hearing months earlier. A review of the record indicates that Mirage was afforded the opportunity, both prior to and at the start of the hearing, to either withdraw from the hearing and obtain counsel, with the understanding that a default judgment would be entered against it, or to continue with the hearing without representation. It was further explained that if Mirage withdrew its appearance from the hearing, it would then be able to move to reopen the matter once counsel had been obtained, and a new hearing would be held if the motion were granted. Mirage then decided to proceed with the hearing without counsel. Under these circumstances, we cannot conclude that Mirage was deprived
of due process (see Matter of Crisalli [Commissioner of Labor], 279 AD2d 925, 925 [2001]; Matter of Palmer [Rescue Mission Alliance of Syracuse — Commissioner of Labor], 273 AD2d 525, 525-526 [2000]).
........"
What is important in this decision, for both Employers and Claimants, is that the time to get an attorney is when you request a hearing, and do not wait until you get the notice of the hearing date. Of course, in this matter, the court notes that the Employer could have defaulted and moved to reopen - but here the Employer chose to proceed without counsel.
Thursday, August 5, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
The effects of the Employer in the past two examples, viz., Requesting A Hearing, Defaulting, Applying to Reopen, Defaulting, etc. are as follows:
1. Increase stress suffered by Claimant.
2. Increase in attorneys fees and expenses incurred by Claimant.
3. Increase in costs, manpower, etc. on the Appeals Board who has to process the applications, etc.
4. Other Claimants who are seeking hearings when they have been denied benefits are experiencing a longer delay in obtaining their hearing date because hearing time is being wasted on hearings that do not take place because of Employer defaults.
1. Increase stress suffered by Claimant.
2. Increase in attorneys fees and expenses incurred by Claimant.
3. Increase in costs, manpower, etc. on the Appeals Board who has to process the applications, etc.
4. Other Claimants who are seeking hearings when they have been denied benefits are experiencing a longer delay in obtaining their hearing date because hearing time is being wasted on hearings that do not take place because of Employer defaults.
Tuesday, August 3, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
Now for the interesting part on Example 2:
1. The incident described in Number 1 occurred in February 2009.
2. The incident described in Number 12 occurred in July 2010.
Again, almost a year and a half and the Claimant still does not know if another application to reopen will be made by the Employer and again, the stress level for Claimants can be very high in these situations.
1. The incident described in Number 1 occurred in February 2009.
2. The incident described in Number 12 occurred in July 2010.
Again, almost a year and a half and the Claimant still does not know if another application to reopen will be made by the Employer and again, the stress level for Claimants can be very high in these situations.
Monday, August 2, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
Here is example 2:
1. Claimant is terminated and applies for benefits.
2. Employer files objection.
3. DOL investigates and holds Claimant eligible.
4. Employer requests hearing.
5. At hearing, Employer defaults. Decision issued in favor of Claimant.
6. Employer sends letter to Appeals Board that it did not receive Notice of Hearing in time.
7. Appeals Board send out notice of application to reopen granted.
8. Claimant's counsel sends letter to Appeals Board objecting to application.
9. Employer send letter to Appeals Board that it is not requesting a reopening but merely advising that it never received notice.
10. Claimant's counsel sends letter to Appeals Board asking that it treat Employer's letter as a withdrawal of objection.
11. Appeals Board schedules a second hearing.
12. At second hearing, Employer defaults.
1. Claimant is terminated and applies for benefits.
2. Employer files objection.
3. DOL investigates and holds Claimant eligible.
4. Employer requests hearing.
5. At hearing, Employer defaults. Decision issued in favor of Claimant.
6. Employer sends letter to Appeals Board that it did not receive Notice of Hearing in time.
7. Appeals Board send out notice of application to reopen granted.
8. Claimant's counsel sends letter to Appeals Board objecting to application.
9. Employer send letter to Appeals Board that it is not requesting a reopening but merely advising that it never received notice.
10. Claimant's counsel sends letter to Appeals Board asking that it treat Employer's letter as a withdrawal of objection.
11. Appeals Board schedules a second hearing.
12. At second hearing, Employer defaults.
Sunday, August 1, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
Now for the interesting part on Example 1:
1. The incident described in Number 1 occurred in January 2009.
2. The incident described in Number 8 occurred in July 2010.
Almost a year and a half and the Claimant still does not know if another application to reopen will be made by the Employer. The stress level for Claimants can be very high in these situations.
1. The incident described in Number 1 occurred in January 2009.
2. The incident described in Number 8 occurred in July 2010.
Almost a year and a half and the Claimant still does not know if another application to reopen will be made by the Employer. The stress level for Claimants can be very high in these situations.
Saturday, July 31, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
Some examples of experiences - example 1:
1. Claimant is terminated and applies for benefits.
2. Employer files objection.
3. DOL investigates and holds Claimant eligible.
4. Employer requests hearing.
5. At hearing, Employer defaults. Decision issued in favor of Claimant.
6. Employer makes application to reopen.
7. Application to reopen is granted.
8. At second hearing, Employer defaults.
1. Claimant is terminated and applies for benefits.
2. Employer files objection.
3. DOL investigates and holds Claimant eligible.
4. Employer requests hearing.
5. At hearing, Employer defaults. Decision issued in favor of Claimant.
6. Employer makes application to reopen.
7. Application to reopen is granted.
8. At second hearing, Employer defaults.
Friday, July 30, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
So if an Employer can apply to reopen after default, how many times can this be done? From the Appeals Board website:
"How many times can a party apply to reopen?
Usually, after three failures to appear for a hearing, the next request will be sent to the Appeal Board and will not be automatically scheduled as a hearing. If you receive a Notice of Hearing, you should come to that hearing unless you know it has been adjourned."
"How many times can a party apply to reopen?
Usually, after three failures to appear for a hearing, the next request will be sent to the Appeal Board and will not be automatically scheduled as a hearing. If you receive a Notice of Hearing, you should come to that hearing unless you know it has been adjourned."
Thursday, July 29, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
Next let us examine one of the Appeals Board regulations:
"Section 461.8 Reopening.
On application duly made, an administrative law judge may reopen a case where a decision was rendered upon or following the default of a party affected thereby or following the withdrawal of a request for hearing by a party. Such application shall be made to the chief administrative law judge or a senior administrative law judge who thereupon shall designate an administrative law judge to act upon the application. If such party shows good cause for his default or for his withdrawal of his request for a hearing, he shall be entitled to a hearing on the merits."
"Section 461.8 Reopening.
On application duly made, an administrative law judge may reopen a case where a decision was rendered upon or following the default of a party affected thereby or following the withdrawal of a request for hearing by a party. Such application shall be made to the chief administrative law judge or a senior administrative law judge who thereupon shall designate an administrative law judge to act upon the application. If such party shows good cause for his default or for his withdrawal of his request for a hearing, he shall be entitled to a hearing on the merits."
Wednesday, July 28, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER DEFAULTS
Here is the situation: Claimant applies for benefits, Employer objects, DOL investigates and rules in favor of Claimant and Employer requests a hearing. On hearing date, Claimant appears but Employer does not. What happens. First, from the Appeals Board website:
"What if the other party does not attend the hearing?
If you asked for the hearing and go to the hearing, then the hearing will be held unless the judge finds there is good reason to adjourn the case. If the hearing is held, the decision will be made based on your testimony and evidence. If the other side asked for the hearing and does not show up, then a decision will be issued saying that the determination remains in effect. An absent party can apply to reopen the case. Another hearing would be held, and you will get notice of that if it happens. It is important for you to come even if you have been to a hearing already."
"What if the other party does not attend the hearing?
If you asked for the hearing and go to the hearing, then the hearing will be held unless the judge finds there is good reason to adjourn the case. If the hearing is held, the decision will be made based on your testimony and evidence. If the other side asked for the hearing and does not show up, then a decision will be issued saying that the determination remains in effect. An absent party can apply to reopen the case. Another hearing would be held, and you will get notice of that if it happens. It is important for you to come even if you have been to a hearing already."
Friday, July 9, 2010
UNEMPLOYMENT INSURANCE - CLAIMANT'S APPEAL TO THE APPEAL BOARD
From the Appeals Board website:
"Timeliness
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)"
"Timeliness
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)"
Monday, June 28, 2010
UNEMPLOYMENT INSURANCE - CLAIMANT'S REQUEST FOR HEARING
Here is another decision from the Appellate Division, 3rd Department on the issue of a Claimant's timely request for a hearing highlighting the Claimant's need to establish a valid excuse for any delay:
IN RE LEWIS, 69 A.D.3d 1088, 892 N.Y.S.2d 664[3d Dept 2010]
In the Matter of the Claim of MARTIN LEWIS, Appellant. COMMISSIONER OF LABOR, Respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 1, 2008, which ruled that claimant'srequest 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.
IN RE LEWIS, 69 A.D.3d 1088, 892 N.Y.S.2d 664[3d Dept 2010]
In the Matter of the Claim of MARTIN LEWIS, Appellant. COMMISSIONER OF LABOR, Respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 1, 2008, which ruled that claimant'srequest 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.
Sunday, June 27, 2010
UNEMPLOYMENT INSURANCE - CLAIMANT'S REQUEST FOR HEARING
The Appellate Division, 3rd Department has recently issued some decisions on the issue of a Claimant's timely request for a hearing. Here's one - and as you can see, Claimants must have a mental or physical disability as an excuse for any delay:
IN MATTER OF WRIGHT v. COMM. OF LABOR, 2010 NY Slip Op 02054, 895 N.Y.S.2d 886 [3d Dept 3-18-2010]
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 18, 2009, which ruled that claimant's request for a hearing request 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.
MEMORANDUM AND ORDER
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.
Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ., concur.
IN MATTER OF WRIGHT v. COMM. OF LABOR, 2010 NY Slip Op 02054, 895 N.Y.S.2d 886 [3d Dept 3-18-2010]
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 18, 2009, which ruled that claimant's request for a hearing request 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.
MEMORANDUM AND ORDER
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.
Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ., concur.
Saturday, June 26, 2010
UNEMPLOYMENT INSURANCE - CLAIMANT'S REQUEST FOR HEARING
I will now mention some cases from the Appeals Board website on the issue of a Claimant's Request For Hearing. Note also, that the following is mentioned in all caps:
"NOTE: REGARDLESS OF THE PRINCIPLES DISCUSSED IN THIS SECTION, LOCAL OFFICES ARE REQUIRED TO PROCESS ANY AND ALL HEARING REQUESTS. THE ADMINISTRATIVE LAW JUDGE WILL DECIDE WHETHER CLAIMANT IS ENTITLED TO A HEARING.
Timeliness
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)
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)
A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)
A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)
The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)
An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)
A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)
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)
When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)
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)
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)"
"NOTE: REGARDLESS OF THE PRINCIPLES DISCUSSED IN THIS SECTION, LOCAL OFFICES ARE REQUIRED TO PROCESS ANY AND ALL HEARING REQUESTS. THE ADMINISTRATIVE LAW JUDGE WILL DECIDE WHETHER CLAIMANT IS ENTITLED TO A HEARING.
Timeliness
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)
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)
A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)
A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)
The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)
An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)
A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)
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)
When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)
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)
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)"
Friday, June 25, 2010
UNEMPLOYMENT INSURANCE - CLAIMANT'S REQUEST FOR HEARING
The next thing to review is the Appeals Board regulation:
"(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."
"(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."
Thursday, June 24, 2010
UNEMPLOYMENT INSURANCE - CLAIMANT'S REQUEST FOR HEARING
Next, let us review the statute from the NYS Labor Law:
Sec. 620. Referees` hearings. 1. Disputed claims for benefits. (a) A claimant who is dissatisfied with an initial determination of his claim for benefits or any other party, including any employer whose employer account percentage might be affected by such determination, may, within thirty days after the mailing or personal delivery of notice of such determination, request a hearing. The referee may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within thirty days of the initial determination. Any employer whose employer account percentage might be affected by such determination, irresepctive of whether or not such employer was a party to a hearing brought hereunder, shall have free access to all records of any hearing brought hereunder by any party relating to such determination.
Sec. 620. Referees` hearings. 1. Disputed claims for benefits. (a) A claimant who is dissatisfied with an initial determination of his claim for benefits or any other party, including any employer whose employer account percentage might be affected by such determination, may, within thirty days after the mailing or personal delivery of notice of such determination, request a hearing. The referee may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within thirty days of the initial determination. Any employer whose employer account percentage might be affected by such determination, irresepctive of whether or not such employer was a party to a hearing brought hereunder, shall have free access to all records of any hearing brought hereunder by any party relating to such determination.
Wednesday, June 23, 2010
UNEMPLOYMENT INSURANCE - CLAIMANT'S REQUEST FOR HEARING
Let us now the discuss the issue of the Claimant's timeliness to request a hearing. Of course, the first place to start this discussion is from the FAQ from the Appeals Board website:
"How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?
The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one.
Who can ask for a hearing?
A claimant or employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits.
What does the hearing mean to me?
The hearing is an informal trial. The judge decides after the hearing to grant or deny unemployment benefits to a claimant. If the judge decides in the claimant’s favor, any benefits due will be paid. If an employer asked for the hearing and the decision goes against the claimant, the claimant’s benefits will be stopped and it is possible any benefits the claimant has already received may have to be repaid.
Can I ask for the hearing to be on a certain day or time?
When you ask for the hearing, explain if you cannot attend during certain hours or on certain days and the reason for that. We will try to satisfy your request.
Who is the judge?
The judge is employed by the Unemployment Insurance Appeal Board to decide if the determination made by the Department of Labor is correct or not. The judge is not connected to any side in the case. The judge is not connected to the Telephone Claim Center (TCC). The judge’s job is to make sure that everyone gets a fair chance to be heard. The judge knows the unemployment insurance law, evidence and procedure. The judge will review the evidence introduced at the hearing and will send you a written decision after the hearing.
Who can attend the hearing?
You and someone who can help you present your case can attend the hearing. This person can be a lawyer, an authorized agent, union representative, or a friend. Your former employer or their representative(s), (who may be a lawyer) may attend. You and your former employer both have a right to bring witnesses. The DOL may send a representative to defend its decision."
"How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?
The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one.
Who can ask for a hearing?
A claimant or employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits.
What does the hearing mean to me?
The hearing is an informal trial. The judge decides after the hearing to grant or deny unemployment benefits to a claimant. If the judge decides in the claimant’s favor, any benefits due will be paid. If an employer asked for the hearing and the decision goes against the claimant, the claimant’s benefits will be stopped and it is possible any benefits the claimant has already received may have to be repaid.
Can I ask for the hearing to be on a certain day or time?
When you ask for the hearing, explain if you cannot attend during certain hours or on certain days and the reason for that. We will try to satisfy your request.
Who is the judge?
The judge is employed by the Unemployment Insurance Appeal Board to decide if the determination made by the Department of Labor is correct or not. The judge is not connected to any side in the case. The judge is not connected to the Telephone Claim Center (TCC). The judge’s job is to make sure that everyone gets a fair chance to be heard. The judge knows the unemployment insurance law, evidence and procedure. The judge will review the evidence introduced at the hearing and will send you a written decision after the hearing.
Who can attend the hearing?
You and someone who can help you present your case can attend the hearing. This person can be a lawyer, an authorized agent, union representative, or a friend. Your former employer or their representative(s), (who may be a lawyer) may attend. You and your former employer both have a right to bring witnesses. The DOL may send a representative to defend its decision."
Tuesday, June 22, 2010
UNEMPLOYMENT INSURANCE - EMPLOYER'S REQUEST FOR HEARING
Unfortunately, at the hearing yesterday, the Administrative Law Judge reserved decision on the issue of timeliness of the Employer's Request For Hearing so now we are on for hearing number 3 on the issue of misconduct. This is unfortunate because now the Claimant has further hearings, the attorney fee will be greater, more delays, etc. But the law is clear on what is a timely request for a hearing notwithstanding the language in the Appeal Board rules and the case law should govern. Here are two more cases:
IN RE LURIE, 49 A.D.3d 932, 853 N.Y.S.2d 390 [3d Dept 2008]
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 31, 2006, which, upon reconsideration, adhered to its prior decisions ruling, among other things, that the employer's request for a hearing was untimely.
Jonathan B. Lurie, New York City, appellant pro se.
McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for Christopher D. White, respondent.
Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.
Before: Cardona, P.J., Peters, Spain, Rose and Lahtinen, JJ.
On November 23, 2004, the Department of Labor issued an initial determination holding claimant eligible to receive unemployment insurance benefits and the employer liable for contributions based on remuneration paid to claimant and others similarly situated. However, the employer did not request a hearing challenging the determination until March 3, 2005. Following a hearing on the issue, in two separate decisions, an Administrative Law Judge found that the hearing request was untimely as to the issue of claimant's eligibility and as to the issue of the employer's liability for contributions. These decisions were subsequently affirmed by the Unemployment Insurance Appeal Board. The employer successfully moved to reopen and, upon reconsideration, the Board adhered to its prior decisions, prompting these appeals.
Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination to request a hearing. Although the employer offered an excuse for its failure to request a hearing within the 30-day period following the November 23, 2004 determination, "the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no provision permitting an extension of time in which an employer can request a hearing" (Matter of Rago [Resource One, Inc. — Commissioner of Labor], 22 AD3d 1002, 1002 [2005]; see Matter of Schwartz [Durhon Oldham Natl. Income Life — Commissioner of Labor], 17 AD3d 903, 903-904 [2005]). Accordingly, we will not disturb the Board's decisions with respect to timeliness. In view of our disposition, we need not address the employer's remaining claims.
Ordered that the decisions are affirmed, without costs.
________________________________________
IN RE HARROUN, 44 A.D.3d 1220, 843 N.Y.S.2d 526 [3d Dept 2007]
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 27, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.
Law Offices of David J. Sutton, P.C., Garden City (Brian C. Pascale of counsel), for appellant.
Before Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur.
An initial determination by the Commissioner of Labor finding claimant eligible to receive unemployment insurance benefits was mailed to the parties on August 23, 2005. Thereafter, by correspondence dated September 21, 2005 and filed with the local unemployment office on September 26, 2005, the employer requested a hearing to protest the determination. Following the hearing, the Administrative Law Judge overruled an objection by the Commissioner of Labor that the employer's hearing request was untimely, and upheld the initial determination of eligibility for benefits. The Unemployment Insurance Appeal Board reversed the Administrative Law Judge's decision, finding that claimant was disqualified from receiving benefits on the ground that she had been discharged from her employment for misconduct. Claimant now appeals.
We reverse. The 30-day period in which the employer had to request a hearing to contest the Commissioner of Labor's initial determination expired on September 22, 2005 (see Labor Law § 620 [2]). Although the employer's hearing request was dated and apparently mailed on September 21, 2005, it was not filed until September 26, 2005. The timeliness of such a request is measured by the date on which it was filed, and not on the date on which it was mailed (see Matter of Levine Commissioner of Labor], 253 AD2d 954, 955 [1998]). As such, the employer's request for a hearing, filed four days after the controlling 30-day limitations period elapsed, was time-barred (see id.).
Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.
IN RE LURIE, 49 A.D.3d 932, 853 N.Y.S.2d 390 [3d Dept 2008]
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 31, 2006, which, upon reconsideration, adhered to its prior decisions ruling, among other things, that the employer's request for a hearing was untimely.
Jonathan B. Lurie, New York City, appellant pro se.
McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for Christopher D. White, respondent.
Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.
Before: Cardona, P.J., Peters, Spain, Rose and Lahtinen, JJ.
On November 23, 2004, the Department of Labor issued an initial determination holding claimant eligible to receive unemployment insurance benefits and the employer liable for contributions based on remuneration paid to claimant and others similarly situated. However, the employer did not request a hearing challenging the determination until March 3, 2005. Following a hearing on the issue, in two separate decisions, an Administrative Law Judge found that the hearing request was untimely as to the issue of claimant's eligibility and as to the issue of the employer's liability for contributions. These decisions were subsequently affirmed by the Unemployment Insurance Appeal Board. The employer successfully moved to reopen and, upon reconsideration, the Board adhered to its prior decisions, prompting these appeals.
Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination to request a hearing. Although the employer offered an excuse for its failure to request a hearing within the 30-day period following the November 23, 2004 determination, "the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no provision permitting an extension of time in which an employer can request a hearing" (Matter of Rago [Resource One, Inc. — Commissioner of Labor], 22 AD3d 1002, 1002 [2005]; see Matter of Schwartz [Durhon Oldham Natl. Income Life — Commissioner of Labor], 17 AD3d 903, 903-904 [2005]). Accordingly, we will not disturb the Board's decisions with respect to timeliness. In view of our disposition, we need not address the employer's remaining claims.
Ordered that the decisions are affirmed, without costs.
________________________________________
IN RE HARROUN, 44 A.D.3d 1220, 843 N.Y.S.2d 526 [3d Dept 2007]
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 27, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.
Law Offices of David J. Sutton, P.C., Garden City (Brian C. Pascale of counsel), for appellant.
Before Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur.
An initial determination by the Commissioner of Labor finding claimant eligible to receive unemployment insurance benefits was mailed to the parties on August 23, 2005. Thereafter, by correspondence dated September 21, 2005 and filed with the local unemployment office on September 26, 2005, the employer requested a hearing to protest the determination. Following the hearing, the Administrative Law Judge overruled an objection by the Commissioner of Labor that the employer's hearing request was untimely, and upheld the initial determination of eligibility for benefits. The Unemployment Insurance Appeal Board reversed the Administrative Law Judge's decision, finding that claimant was disqualified from receiving benefits on the ground that she had been discharged from her employment for misconduct. Claimant now appeals.
We reverse. The 30-day period in which the employer had to request a hearing to contest the Commissioner of Labor's initial determination expired on September 22, 2005 (see Labor Law § 620 [2]). Although the employer's hearing request was dated and apparently mailed on September 21, 2005, it was not filed until September 26, 2005. The timeliness of such a request is measured by the date on which it was filed, and not on the date on which it was mailed (see Matter of Levine Commissioner of Labor], 253 AD2d 954, 955 [1998]). As such, the employer's request for a hearing, filed four days after the controlling 30-day limitations period elapsed, was time-barred (see id.).
Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.
Saturday, April 3, 2010
UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS
Let me comment on some of the statements made on the Appeals Board FAQ website on hearings. The first FAQ is as follows:
"How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?
The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one."
Here, the Claimant must be timely in their request and I would suggest that the Request For Hearing be sent with some sort of delivery confirmation. The Appeals Board and the courts have been strict with time time requirement of 30 days. It is a rule that a non timely requests for hearings will be excused if a physical condition or mental incapacity exists rendering the claimant unable to comply with the statutory requirement or that there be a reasonable excuse for the delay. IN RE BAIRD, 54 A.D.3d 466 (3d Dept 2008); IN THE MATTER OF DIAZ, 6 A.D.3d 1024 (3d Dept 2004); See also see Matter of Tobar (Commissioner of Labor), 308 A.D.2d 651 (2003); Matter of McKinleyo (Commissioner of Labor), 307 A.D.2d 506 (2003). An examination of some cases reveals different constructions of what is a reasonable excuse for a delay. For example, there are these decisions from the Appeals Board:
"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)
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)
A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)
A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)
An employer who failed to request a timely hearing upon receipt of the original local office determination allowing benefits, is not entitled to a hearing on the same issue upon receipt of a determination in the form of a Notice of Experience Rating Charges - Form IA 96. (A.B. 79,949-61; A-750-1545)
The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)
An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)
A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)
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)
When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)
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)
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)
NOTE: REGARDLESS OF THE PRINCIPLES DISCUSSED IN THIS SECTION, LOCAL OFFICES ARE REQUIRED TO PROCESS ANY AND ALL HEARING REQUESTS. THE ADMINISTRATIVE LAW JUDGE WILL DECIDE WHETHER CLAIMANT IS ENTITLED TO A HEARING."
"How do I ask for a hearing if I disagree with a NOTICE OF DETERMINATION on unemployment benefits?
The NOTICE OF DETERMINATION tells you how to ask for a hearing. Fax or mail a request for a hearing to the address indicated on the NOTICE OF DETERMINATION. Your request must be postmarked or faxed within 30 days after the determination is mailed to you. A hearing will not automatically be set up if you don’t ask for one."
Here, the Claimant must be timely in their request and I would suggest that the Request For Hearing be sent with some sort of delivery confirmation. The Appeals Board and the courts have been strict with time time requirement of 30 days. It is a rule that a non timely requests for hearings will be excused if a physical condition or mental incapacity exists rendering the claimant unable to comply with the statutory requirement or that there be a reasonable excuse for the delay. IN RE BAIRD, 54 A.D.3d 466 (3d Dept 2008); IN THE MATTER OF DIAZ, 6 A.D.3d 1024 (3d Dept 2004); See also see Matter of Tobar (Commissioner of Labor), 308 A.D.2d 651 (2003); Matter of McKinleyo (Commissioner of Labor), 307 A.D.2d 506 (2003). An examination of some cases reveals different constructions of what is a reasonable excuse for a delay. For example, there are these decisions from the Appeals Board:
"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)
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)
A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination. (A.B. 24l,070F; A-750-1836)
A timely hearing request from a notice of an overpayment does not permit a referee to take jurisdiction over the merits of the initial determination causing the overpayment, when the request is untimely with respect to the original determination. (A.B. 54,699-56; A-750-1420)
An employer who failed to request a timely hearing upon receipt of the original local office determination allowing benefits, is not entitled to a hearing on the same issue upon receipt of a determination in the form of a Notice of Experience Rating Charges - Form IA 96. (A.B. 79,949-61; A-750-1545)
The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850)
An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits. (A.B. 273,205; A-750-1865)
A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law Judge jurisdiction to decide the case on its merits. (A.B. 281,098; A-750-1881)
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)
When claimant's need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067)
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)
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)
NOTE: REGARDLESS OF THE PRINCIPLES DISCUSSED IN THIS SECTION, LOCAL OFFICES ARE REQUIRED TO PROCESS ANY AND ALL HEARING REQUESTS. THE ADMINISTRATIVE LAW JUDGE WILL DECIDE WHETHER CLAIMANT IS ENTITLED TO A HEARING."
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