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Freedman v. Commissioner of Labor

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


July 1, 2010

IN THE MATTER OF THE CLAIM OF MARK A. FREEDMAN, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: May 12, 2010

Before: Spain, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 2, 2009, which dismissed claimant's appeal from a decision of the Administrative Law Judge as untimely.

Claimant was part owner of a retail store and, after closing the still viable business in November 2007 and applying for unemployment benefits, was disqualified by a Department of Labor determination, rendered in February 2008, which found that he voluntarily separated from his employment without good cause and was not totally unemployed. Following a hearing, an Administrative Law Judge sustained the initial determination in a decision rendered and mailed to claimant on April 3, 2008 and received a few days later. Claimant appealed that determination in October 2008 and the Unemployment Insurance Appeal Board dismissed the appeal as untimely, finding that claimant failed to file the notice of appeal within the statutory time period and did not present good cause for doing so. Claimant now appeals.

We affirm. An appeal to the Board from the decision of an Administrative Law Judge must be made within 20 days of its mailing or personal delivery, and that time period is strictly construed (see Labor Law § 621 [1]; Matter of Ortiz [Jet Hardware Mfg., Inc. -- Commissioner of Labor], 70 AD3d 1104, 1105 [2010]; Matter of Bolden [Commissioner of Labor], 65 AD3d 727, 727 [2009]). Here, the decision of the Administrative Law Judge specifically advised claimant of the 20-day period in which to bring an appeal. Claimant alleged that his six-month delay in appealing the decision was due to the fact that he was confused by erroneous information he received regarding whether the corporation needed to be closed in order for him to collect benefits. However, this Court has held repeatedly that such confusion does not constitute a reasonable excuse for delay, and we therefore find no basis upon which to disturb the Board's decision (see Matter of Ortiz [Jet Hardware Mfg., Inc. -- Commissioner of Labor], 70 AD3d at 1105; Matter of Bolden [Commissioner of Labor], 65 AD3d at 727-728; Matter of Jowers [Commissioner of Labor], 295 AD2d 734, 735 [2002], lv denied 98 NY2d 614 [2002]).

Spain, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

20100701

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