Matter of White (Commr. of Labor) , 29 N.Y.S.3d 705 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 28, 2016 521522
________________________________
In the Matter of the Claim of
JAMIE WHITE,
Respondent.
F2 SOLUTIONS, LLC, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
________________________________
Calendar Date: March 22, 2016
Before: Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.
__________
Deale Services, LLC, Rockville, Maryland (Jerry A. Miles of
counsel), for appellant.
Francis J. Smith, Albany, for Jamie White, respondent.
Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Commissioner of Labor,
respondent.
__________
Garry, J.
Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed May 13, 2015, which ruled that the request by
F2 Solutions, LLC for a hearing was untimely.
By initial determination dated June 26, 2014, claimant was
deemed eligible to receive unemployment insurance benefits based
upon a finding that she and others similarly situated were
employees of F2 Solutions, LLC. F2 was advised that it could
-2- 521522
request a hearing in writing within 30 days if it disagreed with
the determination. By letter dated September 18, 2014, F2
objected to the determination and, by letter dated November 13,
2014, it requested a hearing. Following a hearing, an
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 F2 now appeals.
"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 Preyer [Dische–Commissioner of Labor], 121 AD3d 1216,
1216 [2014], appeal dismissed 24 NY3d 1204 [2015], lv denied 25
NY3d 906 [2015]; accord Matter of Tartaglia [Aegis Capital
Corp.–Commissioner of Labor], 128 AD3d 1304, 1305 [2015]).
Moreover, "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 White [Lurie–Commissioner of
Labor], 49 AD3d 932, 933 [2008] [internal quotation marks and
citation omitted]; accord Matter of Agarwal [Bilingual Seit &
Preschool, Inc.–Commissioner of Labor], 108 AD3d 807, 808
[2013]). Here, it is undisputed that the determination letter
was mailed on June 26, 2014. Even assuming without deciding that
F2's September 18, 2014 letter constituted a request for a
hearing, the request was still made outside of the 30-day
statutory period. As such, the Board's determination that the
request for a hearing was untimely will not be disturbed. F2's
remaining claims, to the extent that they are properly before us,
have been considered and found to be without merit.
Lahtinen, J.P., McCarthy, Rose and Mulvey, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court