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In re Claim of Agarwal

Supreme Court of New York, Third Department

July 3, 2013

In the Matter of the Claim of MANJU AGARWAL, Respondent. And BILINGUAL SEIT & PRESCHOOL, INC., Appellant. COMMISSIONER OF LABOR, Respondent.

Calendar Date: June 6, 2013

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 9, 2011, which ruled that the employer's request for a hearing was untimely.

Law Offices of Elliot S. Schlissel, Lynbrook (Andrea E. Miller of counsel), for appellant.

Cynthia Feathers, Glens Falls, for Manju Agarwal, respondent.

Eric T. Schneiderman, Attorney General, Albany (Steven Koton of counsel), for Commissioner of Labor, respondent.

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

MEMORANDUM AND ORDER

Claimant applied for unemployment insurance benefits. By an initial decision dated January 12, 2009, claimant was deemed eligible to receive benefits and the employer was found liable for contributions based on remuneration paid to claimant and others similarly situated. Although the decision was accompanied by notice that the employer must request a hearing in writing within 30 days if it disagreed with the decision, the employer did not submit a written request challenging this determination until February 27, 2009. Following a hearing, the Administrative Law Judge found that the employer's request for a hearing was untimely and continued in effect the initial determination. The Unemployment Insurance Appeal Board affirmed and this appeal ensued.

"Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination to request a hearing" (Matter of White [Lurie—Commissioner of Labor], 49 A.D.3d 932, 933 [2008]; see Matter of Rago [Resource One, Inc.—Commissioner of Labor], 22 A.D.3d 1002, 1002 [2005]). The employer acknowledged receiving the determination, but was unsure of the date of such receipt. Pursuant to the unrebutted presumption found in 12 NYCRR 461.2, the determination was deemed mailed on January 12, 2009 and received by the employer within five days thereafter. Although the employer contends that the admittedly late written request for a hearing was due to law office failure, "the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no provision permitting an extension of time in which an employer can request a hearing" (Matter of Rago [Resource One, Inc.—Commissioner of Labor], 22 A.D.3d at 1002; see Matter of White [Lurie—Commissioner of Labor], 49 A.D.3d at 933; Matter of May [Ribaudo—Commissioner of Labor], 288 A.D.2d 538, 538 [2001]). Accordingly, we will not disturb the Board's determination that the employer's request for a hearing was untimely (see Matter of White [Lurie—Commissioner of Labor], 49 A.D.3d at 933; Matter of Rago [Resource One, Inc.—Commissioner of Labor], 22 A.D.3d at 1002). The employer's remaining claims, to the extent that they are properly before us, have been examined and found to be without merit.

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

ORDERED that the decision is affirmed, without costs.


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