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Wright v. Commissioner of Labor

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


March 18, 2010

IN THE MATTER OF THE CLAIM OF DWAYNE WRIGHT, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: January 25, 2010

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

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 18, 2009, which ruled that claimant's request for a hearing request was untimely.

After he was terminated from his position as an assistant manager with a shipping and receiving company, claimant applied for unemployment insurance benefits. The Department of Labor mailed an initial determination on October 3, 2008 denying his claim. Claimant waited until December 5, 2008 to request a hearing. At the hearing, the Commissioner of Labor objected to its timeliness. The Unemployment Insurance Appeal Board sustained the timeliness objection and upheld the initial determination. Claimant appeals.

We affirm. It is undisputed that claimant failed to request a hearing within 30 days of the date that the initial determination was mailed as required by Labor Law § 620 (1) (a) (see Matter of Lewis [Commissioner of Labor], 69 AD3d 1088 [2010]; Matter of Baird [Commissioner of Labor], 54 AD3d 466, 467 [2008]; Matter of Briggs [Commissioner of Labor], 52 AD3d 1081, 1082 [2008]). The proffered reason for his failure to make the request sooner was that he had difficulty focusing due to fact that he was moving from place to place. Inasmuch as this did not constitute a reasonable excuse for the delay (see Matter of Baird [Commissioner of Labor], 54 AD3d at 467) and claimant has not demonstrated that he suffered from a mental or physical disability that precluded him from requesting a hearing within the 30-day time period (see Matter of Martinez [Commissioner of Labor], 52 AD3d 1137, 1137 [2008]; Matter of Briggs [Commissioner of Labor], 52 AD3d at 1082), we find no reason to disturb the Board's decision.

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

ORDERED that the decision is affirmed, without costs.

20100318

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