In re the Claim of Bal

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 31, 2002, which denied claimant’s request to recompute his unemployment insurance benefit rate.

Claimant’s unemployment insurance benefit rate was calculated pursuant to Labor Law § 590 (5) by dividing the remuneration paid him during the highest quarter of his base period by one-twenty-sixth, rounded down to the lowest dollar. The record is clear that claimant sought recomputation of his unemployment rate using the average weekly wage computations contained in Labor Law § 590 (12). Such a request for recomputation, however, must be made “within ten days of the date of the mailing of the determination of the benefit rate” (§ 590 [12] [a] [2]). Claimant, in his brief, admits that his request for reconsideration was not sent within 10 days, but was sent prior to the expiration of 30 days. Therefore, claimant’s request for reconsideration is untimely.

Claimant’s current alternative argument is that his request for reconsideration was misconstrued as an application to have his benefit rate recalculated based on weeks of employment. Rather, he now contends that his actual purpose was to establish that he had additional wages and employers that were not included in the original calculation. This argument, however, is inconsistent with both his own testimony at the first hearing and the language of the request form. Moreover, if he is not seeking to have his benefit rate recalculated based on weeks of employment, his request is merely academic. Based on his own submissions, the highest quarter of wages earned is only $10 more than that used by the Department of Labor in calculating his unemployment benefit, resulting in no increase.

Cardona, P.J., Crew III, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.