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

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


January 5, 2012

IN THE MATTER OF THE CLAIM OF IRIS LONG, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 13, 2010, which denied claimant's request to use alternate quarter earnings to calculate her benefit rates.

Calendar Date: November 2, 2011

Before: Spain, J.P., Rose, Lahtinen, Garry and Egan Jr., JJ.

MEMORANDUM AND ORDER

Claimant applied for unemployment insurance benefits with an effective date of March 31, 2008. On April 7, 2008, the Department of Labor mailed claimant a monetary benefit determination notifying her that her weekly benefit rate was $158, with a base period of October 1, 2006 to September 30, 2007 and an alternate quarter of October 1, 2007 to December 31, 2007. The determination instructed claimant that if she wished to use earnings in the alternate quarter in order to calculate her weekly benefit rate, she must submit a form requesting an alternative base period found in an accompanying handbook.

On April 13, 2009, claimant filed a new claim for benefits, effective April 6, 2009. A monetary benefit determination was mailed to her on April 14, 2009, establishing a $119 weekly rate and a base period of January 1, 2008 to December 31, 2008, with an alternate quarter of January 1, 2009 to March 31, 2009. In July 2009, claimant requested that the Department of Labor use her earnings from the alternate quarter of her 2008 claim, October 2007 to December 2007, to adjust her weekly rate for either the 2008 claim or the 2009 claim. The requests were initially denied and, following a hearing, the Administrative Law Judge (hereinafter ALJ) sustained the denial. The ALJ concluded that the request to use the alternate quarter earnings to calculate the 2008 weekly rate was untimely and, since the alternate quarter was not included in the base period of the 2009 claim, the earnings could not be included in that claim. The Unemployment Insurance Appeal Board upheld the ALJ's decision, prompting this appeal.

We affirm. Regarding the 2008 claim, claimant was required to file her request to use the alternate quarter wages within 10 days of the date that the monetary benefit determination was mailed to her, which in this case occurred on April 7, 2008 (see Labor Law § 527 [2] [b] [i]; Matter of Carrington [Commissioner of Labor], 61 AD3d 1193, 1193 [2009]). As she did not submit her request until July 6, 2009, the Board's finding that the request was untimely is supported by substantial evidence (see Matter of Carrington [Commissioner of Labor], 61 AD3d at 1193; Matter of Saluk [Commissioner of Labor], 8 AD3d 923, 924 [2004]). Turning to the 2009 claim, claimant's base period was properly established as being from January 1, 2008 to December 31, 2008 (see Labor Law § 520 [1]). Accordingly, the Board correctly concluded that claimant's earnings from October 2007 to December 2007 do not constitute earnings within the appropriate base period (see Labor Law § 527; Matter of Paterson [Commissioner of Labor], 14 AD3d 751, 753 [2005]).

Spain, J.P., Rose, Lahtinen, Garry and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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