Matter of Paladino (Commr. of Labor)

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 23, 2016 521628
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In the Matter of the Claim of
ROSE L. PALADINO,
Appellant.
MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: May 3, 2016
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.
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Rose L. Paladino, Sommers, appellant pro se.
Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.
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Appeal from a decision of the Unemployment Insurance Appeal
Board, filed January 23, 2015, which dismissed claimant's appeal
from a decision of the Administrative Law Judge as untimely.
By decision mailed October 7, 2014, an Administrative Law
Judge (hereinafter ALJ) affirmed an initial decision of the
Department of Labor disqualifying claimant from receiving
unemployment insurance benefits because she was not totally
unemployed and assessing her a recoverable overpayment of
benefits and a forfeiture penalty. Claimant did not appeal this
decision to the Unemployment Insurance Appeal Board until January
8, 2015. The Board dismissed the appeal as untimely as claimant
did not set forth a reasonable excuse for the delay. Claimant
now appeals.
We affirm. "Labor Law § 621 (1) requires that an appeal
from a decision of an [ALJ] be taken within 20 days of the date
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the decision is mailed or personally delivered, and this time
requirement is strictly construed" (Matter of Matteo
[Commissioner of Labor], 134 AD3d 1307, 1307 [2015] [citation
omitted]; see Matter of Stephens [Commissioner of Labor], 119
AD3d 1258, 1259 [2014]). Here, claimant did not appeal the ALJ's
decision until after the statutory time period. Moreover,
claimant did not show good cause for noncompliance, as the only
excuse for the delay proffered by her in her appeal to the Board
was that she "did not believe that [she] had any chance of
success." As such, the Board's decision will not be disturbed
(see Matter of Matteo [Commissioner of Labor], 134 AD3d at 1307;
Matter of Area Emporium LLC [Commissioner of Labor], 115 AD3d
1096, 1097 [2014]). As a result, the underlying merits of the
denial of her application for unemployment insurance benefits are
not properly before us (see Matter of Padilla [Commissioner of
Labor], 136 AD3d 1080, 1081 [2016]; Matter of Green [Commissioner
of Labor], 87 AD3d 1222, 1222 [2011]). Although claimant
subsequently proffered other reasons for her failure to timely
appeal, she made no application to the Board to reopen its
decision. Accordingly, inasmuch as those issues were not before
the Board when it reached its decision, they will not be
considered on this appeal (see Matter of Benitez [Hartnett], 165
AD2d 924, 925 [1990]).
McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.,
concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court