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Davis v. Commissioner of Labor

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


September 23, 2010

IN THE MATTER OF THE CLAIM OF NATHANIEL K. DAVIS, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 26, 2010, which ruled that claimant's request for a hearing was untimely.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

Before: Cardona, P.J., Peters, Rose, Stein and Garry, JJ.

Claimant, a certified nurse's aide for an assisted living facility, was terminated from employment for failing to disclose his criminal history on his job application. Thereafter, he applied for unemployment insurance benefits and the Department of Labor, finding that claimant lost his employment due to misconduct, denied his claim by initial determination dated August 5, 2009. In response, claimant did not send a letter requesting a hearing until September 23, 2009. Following a hearing, the Unemployment Insurance Appeal Board sustained the Commissioner of Labor's timeliness objection and upheld the initial determination. Claimant now appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), a claimant who is dissatisfied with an initial determination must request a hearing within 30 days of the date that it was mailed, unless prevented from doing so by physical or mental incapacity (see Matter of Wright [Commissioner of Labor], 71 AD3d 1324 [2010]; Matter of Lewis [Commissioner of Labor], 69 AD3d 1088 [2010]). Here, inasmuch as claimant admittedly mailed his request for a hearing outside the 30-day time period and failed to proffer an acceptable excuse for the delay, we find no basis for disturbing the Board's decision (see Matter of Wright [Commissioner of Labor], 71 AD3d at 1324; Matter of Baird [Commissioner of Labor], 54 AD3d 466, 467 [2008]).

Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20100923

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