IN RE: the Claim of Marvin MOORER

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Marvin MOORER, Appellant. Commissioner of Labor, Respondent.

Decided: May 24, 2007

Before:  MERCURE, J.P., PETERS, ROSE, LAHTINEN and KANE, JJ. Marvin Moorer, West Babylon, appellant pro se. Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 31, 2006, which, upon reconsideration, adhered to its prior decision dismissing claimant's appeal from a decision of an Administrative Law Judge as untimely.

An Administrative Law Judge sustained an initial determination ruling that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed and assessing him a recoverable overpayment of benefits and forfeiture of benefit days based upon willful false statements.   Claimant requested an appeal to the Unemployment Insurance Appeal Board, which was denied as untimely.   Upon reconsideration, the Board adhered to its prior decision.   Claimant appeals.

A stamp on the face of the decision of the Administrative Law Judge indicates that it was mailed July 1, 2005.   Claimant's letter appeal was postmarked October 14, 2005.  Labor Law § 621(1) requires that appeals to the Board must be filed within 20 days after the mailing of a notice of decision, and this statute is strictly construed (see Matter of Orologio [Hudacs], 193 A.D.2d 1042, 1043, 598 N.Y.S.2d 371 [1993] ).   Although claimant stated at the hearing that he did not receive the decision of the Administrative Law Judge, he did not raise this issue in his brief and it is therefore deemed abandoned (see e.g. Matter of Wayne [Commissioner of Labor], 261 A.D.2d 768, 769, 689 N.Y.S.2d 780 [1999] ).   Claimant's attempt to argue the underlying merits of the denial of unemployment insurance benefits is not properly before this Court (see Matter of Lampkin [Commissioner of Labor], 29 A.D.3d 1248, 1249, 814 N.Y.S.2d 557 [2006];  Matter of Caravan [Commissioner of Labor], 11 A.D.3d 779, 780, 783 N.Y.S.2d 674 [2004];  Matter of Grunkorn [Commissioner of Labor], 6 A.D.3d 913, 914, 774 N.Y.S.2d 457 [2004] ).

ORDERED that the decision is affirmed, without costs.

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