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

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


September 20, 2012

IN THE MATTER OF THE CLAIM OF EDIVIA ALSINA, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 20, 2011, which ruled that claimant's request for a hearing was untimely.

MEMORANDUM AND ORDER

Calendar Date: July 30, 2012

Before: Peters, P.J., Rose, Spain, Kavanagh and McCarthy, JJ.

The Department of Labor issued an initial determination on April 13, 2010 denying claimant's application for unemployment insurance benefits on the ground that she lost her employment due to misconduct. Claimant requested a hearing with respect to this determination on June 18, 2010. Claimant failed to appear at the hearing and the Administrative Law Judge rendered a default decision sustaining the initial determination. Thereafter, after granting claimant's application to reopen, the Administrative Law Judge sustained the Commissioner of Labor's objection to the timeliness of the hearing and, once again, upheld the initial determination. The Unemployment Insurance Appeal Board subsequently affirmed that decision, resulting in this appeal.

We affirm. Labor Law § 620 (1) (a) provides that a claimant who is dissatisfied with an initial determination concerning unemployment insurance benefits has 30 days from the date of said determination in which to request a hearing, unless prevented from doing so by physical or mental incapacity (see Matter of Desani [Commissioner of Labor], 78 AD3d 1403, 1403 [2010]; Matter of Ganisin [Commissioner of Labor], 77 AD3d 1014, 1014 [2010]). Here, claimant waited two months from the date of the initial determination to request a hearing despite the clear instructions set forth therein. Furthermore, she offered no excuse for her failure to request the hearing in a timely manner. Accordingly, we find no reason to disturb the Board's decision (see Matter of Desani [Commissioner of Labor], 78 AD3d at 1403; Matter of Ganisin [Commissioner of Labor], 77 AD3d at 1015).

Peters, P.J., Rose, Spain, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120920

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