Matter of McKenzie (Commr. of Labor) , 39 N.Y.S.3d 265 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 29, 2016 522070
________________________________
In the Matter of the Claim of
BERNICE McKENZIE,
Respondent.
STRATEGIC DELIVERY SOLUTIONS
LLC, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
________________________________
Calendar Date: September 12, 2016
Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.
__________
Jasinski, PC, Newark, New Jersey (David F. Jasinski of
counsel), for appellant.
Bruce E. Knoll, Albany, for Bernice McKenzie, respondent.
Eric T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for Commissioner of Labor, respondent.
__________
Lynch, J.
Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed January 29, 2015, which ruled, among other
things, that the request by Strategic Delivery Solutions LLC for
a hearing was untimely.
Claimant filed an application for unemployment insurance
benefits effective April 22, 2013. Shortly thereafter, the
Department of Labor issued a determination finding that claimant
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was an employee of Subcontracting Concepts Inc. (hereinafter SCI)
and assessed it for additional unemployment insurance
contributions on remuneration paid to claimant and others
similarly situated. In October 2013, however, the Department
issued a decision and notice to SCI advising that this
determination was withdrawn and the case closed. The Department
issued another determination in January 2014 to Strategic
Delivery Solutions LLC (hereinafter SDS), finding that SDS was
claimant's employer and assessed it for additional unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated (see generally Matter of Gill
[Strategic Delivery Solutions LLC–Commissioner of Labor], 134
AD3d 1362 [2015]). SCI's counsel promptly notified the
Department by letter that the January 2014 determination issued
to SDS, its client, had to be withdrawn because "the case was
cancelled." In July 2014, the Department responded that the
October 2013 notice of withdrawal applied only to SCI and not to
SDS, which it maintained was still claimant's employer. In
August 2014, SCI's counsel sent the Department a letter disputing
the clarity of the notice of withdrawal and advising that SDS was
requesting a hearing.
In December 2014, the hearing was conducted and the
Department objected on the basis that the hearing request was
untimely. The Administrative Law Judge agreed and sustained the
assessment against SDS. The Unemployment Insurance Appeal Board
subsequently affirmed the Administrative Law Judge's decisions
and SDS now appeals.
We affirm. "'Pursuant to Labor Law § 620 (2), an employer
has 30 days to request a hearing after the mailing or personal
delivery of a notice of determination from which it claims to be
aggrieved'" (Matter of White [F2 Solutions, LLC–Commissioner of
Labor], 138 AD3d 1377, 1378 [2016], quoting Matter of Preyer
[Dische–Commissioner of Labor], 121 AD3d 1216, 1216 [2014],
appeal dismissed 24 NY3d 1204 [2015], lv denied 25 NY3d 906
[2015]; see Matter of Scott [CR England Inc.–Commissioner of
Labor], 133 AD3d 935, 936 [2015]). Notably, "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" (Matter of Rago
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[Resource One, Inc.–Commissioner of Labor], 22 AD3d 1002, 1002
[2005]; see Matter of White [JBL Computer Solutions–Commissioner
of Labor], 49 AD3d 932, 933 [2008]).
Here, the determination assessing SDS for additional
contributions was issued in January 2014. The request for a
hearing, however, was not sent until August 2014, well after the
expiration of the 30-day period. Significantly, SDS's
representative testified that SCI and SDS are separate and
distinct entities. Even accepting that SCI's counsel was
representing SDS in requesting the hearing, we find that the
notice of withdrawal, which was limited by its terms to the
determination against SCI, was neither ambiguous nor contributed
to the delay in the hearing request. Given that the hearing
request was made outside the 30-day statutory period (see Labor
Law § 620 [2]), it was clearly untimely and we find no reason to
disturb the Board's decisions. In view of our disposition, we
need not address the merits of the decisions assessing SDS for
additional contributions.
Egan Jr., J.P., Devine, Clark and Mulvey, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court