IN RE: the Claim of Andrew C. SALUK

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

IN RE: the Claim of Andrew C. SALUK, Appellant. Commissioner of Labor, Respondent.

Decided: June 24, 2004

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and LAHTINEN, JJ. Andrew C. Saluk, Huntington, appellant pro se. Eliot Spitzer, Attorney General, New York City (Steven Segall of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 29, 2003, which, upon reconsideration, adhered to its original decision ruling that claimant was ineligible to receive unemployment insurance benefits for the week ending April 13, 2003 and denying his request for use of the alternate base period in calculating his benefit rate.

In March 2003, claimant applied for unemployment insurance benefits.   On April 1, 2003, the Department of Labor issued a monetary determination notifying him that, if he were found eligible to receive benefits, his weekly benefit rate would be $180 using the base period of October 1, 2001 through September 30, 2002.   The determination included a form advising claimant that, if he disagreed with the determination, he could request the use of the alternate base period within 10 days or reconsideration and/or a hearing within 30 days.   On April 16, 2003, claimant checked the box on the form requesting a hearing and/or redetermination and submitted supporting documentation.   He stated that he attempted to call the Department to certify for benefits for the week ending April 13, 2003, but forgot to call back when the line was busy and did not make a further inquiry until the end of May 2003.   As per claimant's request, a hearing was held before an Administrative Law Judge (hereinafter ALJ), who found claimant ineligible to receive benefits for the week ending April 13, 2003 because he did not timely certify for benefits.   The ALJ further denied claimant's request to have the alternate base period used to calculate his benefit rate because he did not make such request within 10 days of receiving the monetary determination.   The Unemployment Insurance Appeal Board upheld the ALJ's decision, and adhered to its decision upon reconsideration.   Claimant now appeals.

 We affirm.   There is no dispute that claimant did not certify for benefits for the week ending April 13, 2003 within the seven-day period required by 12 NYCRR 473.2(a) and substantial evidence supports the Board's finding that claimant did not demonstrate good cause for his failure to request benefits for that week (see Matter of Del Vecchio [Commissioner of Labor], 288 A.D.2d 548, 548-549, 731 N.Y.S.2d 802 [2001];  Matter of Rosado [Commissioner of Labor], 275 A.D.2d 848, 848, 713 N.Y.S.2d 231 [2000] ).   Likewise, there is no dispute that claimant failed to make a request for use of the alternate base period within 10 days of the date of the monetary determination as required by Labor Law § 527(2)(b)(i).   Accordingly, substantial evidence supports the Board's denial of that request as well (see Matter of Bal [Commissioner of Labor], 307 A.D.2d 584, 584, 762 N.Y.S.2d 176 [2003] ).

ORDERED that the decision is affirmed, without costs.

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