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Desani v. Commissioner of Labor

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


November 18, 2010

IN THE MATTER OF THE CLAIM OF ELISSA DESANI, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 29, 2010

Before: Peters, J.P., Spain, Stein, McCarthy and Garry, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 16, 2009, which ruled that claimant's request for a hearing was untimely.

Claimant, a sales associate at a jewelry store, resigned her position in June 2008 and thereafter applied for unemployment insurance benefits. By initial determination mailed on August 25, 2008, the Department of Labor found that claimant was ineligible for benefits because she voluntarily left her employment without good cause. The Department further charged claimant with a recoverable overpayment of $460.75 and found that she had made false statements to receive benefits and, therefore, reduced her right to receive future benefits by eight days. Claimant, who was out of the country from July 2008 until December 2008, did not request a hearing until her return. The Commissioner of Labor objected to the timeliness of her request and, following various proceedings, the Unemployment Insurance Appeal Board ruled that claimant's request was untimely. Claimant now appeals.

We affirm. Pursuant to Labor Law § 620 (1) (a), when dissatisfied with an initial determination, a claimant must request a hearing within 30 days unless physical or mental incapacity prevents him or her from doing so (see Matter of Wright [Commissioner of Labor], 71 AD3d 1324 [2010]; Matter of Lewis [Commissioner of Labor], 69 AD3d 1088 [2010]). Here, claimant admittedly waited nearly four months before requesting a hearing and failed to proffer an acceptable excuse for the delay (see Matter of Wright [Commissioner of Labor], 71 AD3d at 1324; Matter of Briggs [Commissioner of Labor], 52 AD3d 1081, 1082 [2008]).

Peters, J.P., Spain, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20101118

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