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

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


December 6, 2012

IN THE MATTER OF THE CLAIM OF THEODORE WELLS, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 23, 2012, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was unable to file a valid original claim.

MEMORANDUM AND ORDER

Calendar Date: October 29, 2012

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

Claimant applied for unemployment insurance benefits on November 1, 2010. Following a hearing, the Administrative Law Judge determined that claimant was not eligible for benefits because he was unable to file a valid original claim. The Unemployment Insurance Appeal Board affirmed, and claimant now appeals.

The record confirms that claimant did not have sufficient earnings in either his basic or alternate base period to file a valid original claim pursuant to Labor Law § 527. For purposes of the basic condition, claimant's base period covered the period of July 1, 2009 through June 30, 2010 (see Labor Law § 520 [1]).

During this period, claimant was only employed for one calendar quarter and, therefore, did not satisfy the requirements of the basic condition (see Labor Law § 527 [1]; Matter of Stennett [Commissioner of Labor], 54 AD3d 478, 479 [2008]). Turning to the alternate condition, claimant's base period covered the period of October 1, 2009 through September 30, 2010 (see Labor Law § 520 [2]). Claimant earned $6,447.20 during this period and his high calendar quarter earnings were $4,741.60. As such, it is clear that claimant did not earn 11/2 times the high calendar quarter earnings during this period and, therefore, did not satisfy the alternate condition (see Labor Law § 527 [2]; Matter of Sotomayor [Commissioner of Labor], 34 AD3d 957, 958 [2006]).

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

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121206

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