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Page v. Commissioner of Labor

State of New York Supreme Court, Appellate Division Third Judicial Department


August 6, 2009

IN THE MATTER OF THE CLAIM OF WILLIAM W. PAGE, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: June 10, 2009

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

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 11, 2008, which dismissed the employee's appeal from a decision of the Administrative Law Judge as untimely.

By decision dated and mailed October 25, 2007, an Administrative Law Judge (hereinafter ALJ) sustained the initial determination finding that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. During a telephone hearing to determine the timeliness of his April 22, 2008 appeal, claimant admitted to receiving and reading the ALJ's decision, including the instructions regarding the taking of an appeal, shortly after it was mailed, but testified that the delay in requesting an appeal was due to his belief that an appeal would be futile. Specifically, claimant testified that, upon reading the ALJ's decision, he was "totally dismayed" and "just lost the interest and the will" to pursue the matter further. In April 2008, upon receiving a post-investigation determination of the Division of Human Rights which apparently contained encouraging findings, claimant testified that it occurred to him that he should appeal the October 2007 determination. Subsequently, the Unemployment Insurance Appeal Board dismissed claimant'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 (see Matter of Pascarella [New York State Thruway Auth. - Commissioner of Labor], 59 AD3d 835, 835 [2009]; Matter of Cuccia [Martinez & Ritorto, P.C. - Commissioner of Labor], 55 AD3d 1115, 1116 [2008]; Matter of Bottex [Commissioner of Labor], 48 AD3d 855, 856 [2008]). Because "[t]his statutory time period is strictly construed" (Matter of Uwaezuoke [Commissioner of Labor], 57 AD3d 1193, 1193-1194 [2008]; see Matter of Moorer [Commissioner of Labor], 40 AD3d 1335 [2007]), we discern no basis upon which to disturb the Board's decision dismissing the appeal, made more than five months after the expiration of the 20-day time limit, as untimely.

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

ORDERED that the decision is affirmed, without costs.

20090806

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