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In the Matter of the Claim of Pamela M. Mccauley

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


March 7, 2013

IN THE MATTER OF THE CLAIM OF PAMELA M. MCCAULEY, APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: January 24, 2013

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

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 12, 2012, which denied claimant's application to reopen a prior decision.

Claimant applied for unemployment insurance benefits in 2008. She was initially found to be ineligible to receive benefits for the time period of July 7, 2008 to July 19, 2008 on the basis that she was not totally unemployed. Claimant was also disqualified from receiving benefits from July 2008 forward on the ground that she had voluntarily left her job without good cause. Finally, claimant was charged with a recoverable overpayment of benefits and assessed a forfeiture penalty of 24 days based upon a finding that she made a willful misrepresentation to obtain benefits.

Claimant thereafter requested a hearing, which was scheduled to be held telephonically in January 2009. On the hearing date, an Administrative Law Judge (hereinafter ALJ) was unable to contact claimant at the two telephone numbers she had provided, resulting in a default decision against her. Claimant thereafter made numerous applications to reopen the case and each time failed to appear at the hearings scheduled in connection with the applications, resulting in default decisions. Ultimately, a hearing was held on claimant's application to reopen, at which claimant appeared. Following the hearing, the ALJ denied the application to reopen on July 18, 2011, finding that claimant had not demonstrated good cause for failing to appear at the previous hearing. On January 12, 2012, the Unemployment Insurance Appeal Board affirmed the ALJ's decision. Claimant filed a notice of appeal in October 2012, referencing the ALJ's July 2011 decision.

Pursuant to Labor Law § 624, an appeal from a Board decision must be filed within 30 days. Even assuming that claimant intended to appeal the Board's January 2012 determination, her notice of appeal was still filed well after the 30-day limitation period had expired (see Matter of Cuccia [Martinez & Ritorto, P.C.--Commissioner of Labor], 55 AD3d 1115, 1116 [2008]; Matter of Welsh [Commissioner of Labor], 51 AD3d 1351, 1351 [2008]). Accordingly, the appeal must be dismissed as untimely.

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

ORDERED that the appeal is dismissed, as untimely, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130307

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