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Ganisin v. Commissioner of Labor

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


October 7, 2010

IN THE MATTER OF THE CLAIM OF MICHAEL C. GANISIN, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

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

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 23, 2009, which ruled that claimant's request for a hearing was untimely.

The Department of Labor, by initial determinations mailed September 18, 2008, found that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed. Additionally, claimant was charged with a recoverable overpayment of $810 and his right to receive future benefits was reduced by 44 days for having made willful false statements. Claimant mailed his request for a hearing on January 12, 2009. The Commissioner of Labor objected to the timeliness of the hearing request and, ultimately, the Unemployment Insurance Appeal Board ruled that claimant's request was untimely, prompting this appeal.

We affirm. Pursuant to Labor Law § 620 (1) (a), a dissatisfied claimant has 30 days in which to request a hearing from the date of the mailing of the initial determination, unless physical or mental incapacity prevents him or her from doing so (see Matter of Lewis [Commissioner of Labor], 69 AD3d 1088 [2010]; Matter of Baird [Commissioner of Labor], 54 AD3d 466, 467 [2008]). Here, claimant received the initial determinations shortly after they were mailed and did not proffer a valid excuse for why he failed to request a hearing until nearly four months later. As such, we see no reason to disturb the Board's determination (see Matter of Wright [Commissioner of Labor], 71 AD3d 1324 [2010]; Matter of Lewis [Commissioner of Labor], 69 AD3d at 1088).

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

ORDERED that the decision is affirmed, without costs.

20101007

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