IN RE: the Claim of Michelle RAGO

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

IN RE: the Claim of Michelle RAGO, Respondent. Resource One, Inc., Appellant. Commissioner of Labor, Respondent.

Decided: October 27, 2005

Before:  MERCURE, J.P., CREW III, MUGGLIN, ROSE and KANE, JJ. Frank & Associates, P.C., Farmingdale (Neil M. Frank of counsel), for appellant. Cynthia Feathers, Delmar, for Michelle Rago, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 2, 2004, which ruled that the employer's request for a hearing was untimely.

By initial decision dated and mailed April 11, 2003, claimant was deemed eligible to receive unemployment insurance benefits based upon a finding that she and those similarly situated were employees of Resource One, Inc. Testimony at the hearing established that the initial determination was mailed in accordance with Department of Labor procedures and was received by Resource One shortly thereafter. Nevertheless, Resource One failed to request a hearing until August 13, 2003.   Following a hearing, the Administrative Law Judge found that the request for a hearing was untimely and continued in effect the initial determination.   The Unemployment Insurance Appeal Board affirmed and this appeal ensued.

 Labor Law § 620(2) gives an employer 30 days from the initial determination in which to request a hearing.   Notwithstanding Resource One's excuse for its failure to request a hearing earlier, 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 (see Matter of May [Commissioner of Labor], 288 A.D.2d 538, 731 N.Y.S.2d 810 [2001];  Matter of Storch [Cora Gross-Sweeney], 244 A.D.2d 755, 666 N.Y.S.2d 46 [1997];  Matter of Davino [Good Samaritan Hosp. Med. Ctr.-Hudacs], 210 A.D.2d 778, 620 N.Y.S.2d 528 [1994] ).   As such, the belated request for a hearing was properly denied as untimely (see Matter of Schwartz [Durhon Oldham Natl. Income Life-Commissioner of Labor], 17 A.D.3d 903, 904, 793 N.Y.S.2d 610 [2005] ).   Accordingly, the merits of the determination are not properly before this Court (see id.).

ORDERED that the decision is affirmed, without costs.

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