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Carrington v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 16, 2009

IN THE MATTER OF THE CLAIM OF JOAN CARRINGTON, 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: March 2, 2009

Before: Cardona, P.J., Peters, Rose, Kane and Kavanagh, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 9, 2007, which denied as untimely claimant's request for use of the alternate base period in calculating her benefit rate.

The sole issue presented on this appeal is whether the Unemployment Insurance Appeal Board properly denied as untimely claimant's request for use of the alternate base period in calculating her benefit rate. Pursuant to Labor Law § 527 (2) (b) (i), claimant was required to file her request within 10 days of the date that the monetary determination was mailed to her by the Department of Labor, which in this case occurred on July 26, 2006. Included along with that mailing was a form to be utilized to request a recalculation of the benefit rate using the alternate base period. Claimant, however, did not submit that form until October 31, 2006, after the 10-day period had expired. Accordingly, we find no basis to disturb the Board's denial of her request (see Matter of Saluk [Commissioner of Labor], 8 AD3d 923, 924 [2004]).

Claimant nevertheless asserts that she should be deemed to have timely requested that the alternate base period be used in calculating her benefit rate because, on July 11, 2006, she sent a letter and her final pay stub to the Department and asked to have those wages included in her benefit rate calculation. Based upon a plain reading of Labor Law § 527, however, we conclude that the issuance of the monetary determination is the event that triggers a claimant's right to request reconsideration of his or her benefit rate and such a request must be made within 10 days after that triggering event.

Cardona, P.J., Peters, Rose, Kane and Kavanagh, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090416

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