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In the Matter of the Claim of v. Commissioner of Labor

Supreme Court, Appellate Division Third Judicial Department


September 22, 2011

IN THE MATTER OF THE CLAIM OF ROBERT P. GREEN, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 27, 2010, which dismissed claimant's appeal from a decision of the Administrative Law Judge as untimely.

State of New York

MEMORANDUM AND ORDER

Calendar Date: July 27, 2011

Before: Mercure, J.P., Rose, Malone Jr., Stein and Garry, JJ.

Claimant was discharged from his position as an imaging services attendant for insubordination. By decision dated and filed on March 26, 2010, an Administrative Law Judge (hereinafter ALJ) determined, among other things, that claimant lost his employment through disqualifying misconduct. Claimant waited until April 21, 2010 to appeal this decision. The Unemployment Insurance Appeal Board declined to consider the appeal because it was not timely filed, and claimant failed to offer a reasonable excuse. Claimant now appeals from the Board's decision and we affirm.

"Labor Law § 621 (1) requires that an appeal to the Board from an ALJ's decision must be made within 20 days of the date the decision is mailed or personally delivered . . . and the statutory time limit is strictly construed" (Matter of Averett [Commissioner of Labor], 65 AD3d 1436, 1436-1437 [2009] [internal quotation marks and citation omitted]; see Matter of Page [Commissioner of Labor], 65 AD3d 722, 722-723 [2009]). Here, claimant's excuse that he relied on his attorney to appeal the ALJ's decision does not provide a basis to disturb the Board's decision dismissing the appeal (see Matter of Harris [Commissioner of Labor], 45 AD3d 1031, 1032 [2007]). Consequently, claimant's arguments regarding the underlying merits of the denial of his application for unemployment insurance benefits are not properly before us (see id.).

Mercure, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110922

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