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In re Pascarella

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 19, 2009

IN THE MATTER OF THE CLAIM OF JAMES J. PASCARELLA, RESPONDENT. AND
NEW YORK STATE THRUWAY AUTHORITY, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: January 26, 2009

Before: Cardona, P.J., Peters, Kane, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

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 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.

20090219

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