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Lewis v. Commissioner of Labor

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


January 14, 2010

IN THE MATTER OF THE CLAIM OF MARTIN LEWIS, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 4, 2009

Before: Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 1, 2008, which ruled that claimant's request for a hearing was untimely.

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, 1060 [2006]).

Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20100114

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