People v. Van Hoesen , 247 N.Y.S.2d 916 ( 1964 )

De Forest C. Pitt, J.

This is a motion for summary judgment in an action brought to recover the sum of $1,158.75 paid to the defendant I as unemployment insurance benefits. It is alleged that the defendant was not legally entitled to the same.

It appears that following notification of the determination by the Industrial Commissioner that he was not entitled to the said benefits previously paid, the defendant requested and was given a hearing upon such determination by a Referee of the Department of Labor, Division of Employment. The decision made upon this hearing sustained the determination. Thereafter defendant ¡appealed to the Unemployment Insurance Appeal Board and such board sustained the Referee’s decision. The defendant has failed to appeal from the board’s decision.

‘ ‘ The procedure herein provided for hearings before referees with respect to any determination, rule, or order of the commissioner, and for decisions thereon and for appeals therefrom, first to the appeal board and thereafter the courts, shall be the sole and exclusive procedure notwithstanding any other provision of law.’’’ (Labor Law, § 626.)

It appears that the only manner in which the defendant could have further contested said determination would have been to appeal to the Appellate Division of the Supreme Court, Third Department, in accordance with the provisions of section 624 of the Labor Law. Under the above-quoted section this is the exclusive procedure available to the defendant, and this he did not do. Plaintiff’s motion is, therefore, granted.