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Weinstein v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 19, 2009

IN THE MATTER OF THE CLAIM OF RONALD A. WEINSTEIN, 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., Mercure, Kane, Stein and McCarthy, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 12, 2008, which ruled, among other things, that claimant was ineligible to receive unemployment insurance benefits because he did not comply with registration requirements.

Claimant last worked for the employer on September 29, 2006 but did not apply for unemployment insurance benefits until October 1, 2007 due to his belief that the weekly severance payments he received from the employer in the interim constituted income and precluded him from applying for benefits. The Unemployment Insurance Appeal Board ruled, among other things, that claimant was ineligible to receive unemployment insurance benefits because he did not comply with the applicable registration requirements. This appeal by claimant ensued.

We affirm. "Certifying for benefits in accordance with the Labor Law and the applicable regulations is a necessary prerequisite to eligibility for benefits" (Matter of Prieto [Commissioner of Labor], 255 AD2d 859, 860 [1998] [citation omitted]; see Matter of Newman [Commissioner of Labor], 23 AD3d 816 [2005]), and whether a claimant has demonstrated good cause for any such noncompliance is a factual issue for the Board to resolve (see Matter of Breton [Commissioner of Labor], 30 AD3d 661, 662 [2006]; Matter of Nocera [Commissioner of Labor], 12 AD3d 769, 770 [2004]). Here, the Board concluded that claimant's proffered excuse for the one-year delay in filing for unemployment insurance benefits namely, his belief that the severance payments he was receiving rendered him ineligible for such benefits did not rise to the level of good cause. In view of the fact that claimant was not provided with any misinformation by a Department of Labor representative and admittedly failed to inquire as to his eligibility, we find that there is substantial evidence to support the Board's decision (see Matter of Troise [Commissioner of Labor], 45 AD3d 1163, 1163-1164 [2007]; Matter of Newman [Commissioner of Labor], 23 AD3d at 816; Matter of Nocera [Commissioner of Labor], 12 AD3d at 770; Matter of Lang [Commissioner of Labor], 9 AD3d 648, 649 [2004]; Matter of Chen [Commissioner of Labor], 307 AD2d 580, 581 [2003]; Matter of Rosado [Commissioner of Labor], 275 AD2d 848 [2000]).

Cardona, P.J., Mercure, Kane, Stein and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090319

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