IN RE: the Claim of Claude NADAF

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

IN RE: the Claim of Claude NADAF, Appellant. Commissioner of Labor, Respondent.

Decided: October 29, 1998

Before CARDONA, P.J., MIKOLL, SPAIN, CARPINELLO and GRAFFEO, JJ. Claude Nadaf, New York City, appellant in person. Dennis C. Vacco, Attorney-General (Dawn A. Foshee of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 29, 1997, which, upon reconsideration, adhered to its prior decision ruling that claimant's application for an administrative hearing was untimely.

Claimant was found to be ineligible to receive unemployment insurance benefits because on June 19, 1986, inter alia, he was not totally unemployed.   He was charged with a recoverable overpayment and loss of benefit days.   Inasmuch as claimant failed to request a hearing for five years, the decision of the Unemployment Insurance Appeal Board finding that claimant's request for an administrative hearing was untimely should be affirmed (see, Matter of Palmer [Commissioner of Labor], 250 A.D.2d 914, 672 N.Y.S.2d 529;  Matter of Capron [Sweeney], 244 A.D.2d 698, 664 N.Y.S.2d 192).

Although claimant denied having received the initial determination, the unemployment insurance investigator who reviewed claimant's initial request for benefits testified that the notice of determination was mailed in a window envelope on June 19, 1986 and had not been returned, and that he had informed claimant of his right to request a hearing.   Moreover, claimant paid the penalty in full three weeks later.   Under these circumstances, we find no reason to disturb the Board's decision.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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