In re the Claim of Brown

Feb 5, 2004
Versions:4 A.D.3d 604
770 N.Y.S.2d 919
2004 N.Y. App. Div. LEXIS 1080

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 20, 2002, which ruled that claimant’s request for a hearing was untimely.

By initial determination dated May 31, 2002, claimant was disqualified from receiving unemployment insurance benefits on the ground that she refused an offer of suitable employment and was assessed a recoverable overpayment of benefits. Claimant admitted to receiving the determination shortly after it was mailed but failed to read the entire portion of the instructions on the reverse side of the notice of determination indicating that she had 30 days in which to request a hearing. Thereafter, claimant requested a hearing by letter postmarked July 9, 2002.

Inasmuch as claimant failed to request a hearing within the 30-day statutory limitation (see Labor Law § 620 [1] [a]), we find no reason to disturb the decision of the Unemployment Insurance Appeal Board that claimant’s request for a hearing was untimely (see Matter of May [Ribaudo—Commissioner of Labor], 288 AD2d 538, 538-539 [2001]; Matter of Fruscella [Commissioner of Labor], 261 AD2d 686, 686-687 [1999]). Claimant’s assertion that the letter, dated June 12, 2002, was mailed in a timely manner presented a credibility issue for the Board to resolve (see Matter of Fruscella [Commissioner of Labor], supra at 687; Matter of Di Pasquale [Sweeney], 243 AD2d 796, 796 [1997]). In view of the foregoing, the merits of the initial determination denying claimant’s application for unemployment insurance benefits are not properly before this Court (see Matter of Jackson [Commissioner of Labor], 306 AD2d 604, 604 [2003]).

Cardona, EJ., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.