State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 6, 2015 519832 

________________________________

In the Matter of the Claim of

RAFAEL RIVERA,

Appellant.

MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: June 8, 2015

Before: Garry, J.P., Rose, Devine and Clark, JJ.

__________

Rafael Rivera, Allentown, Pennsylvania, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Gary

Leibowitz of counsel), for respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed February 13, 2014, which, among other things, ruled

that claimant's request for a hearing was untimely.

The Department of Labor issued initial determinations,

dated August 8, 2011, that found claimant ineligible to receive

unemployment insurance benefits because he was not totally

unemployed and charged him with recoverable overpayments and

forfeiture penalties. These were mailed to claimant at a

specified mailing address in "Woodhaven, NY." Claimant was

apparently unaware of these determinations until early 2012,

after he had filed another claim for benefits and was informed by

a Department representative that he was responsible for an

overpayment because he had previously received benefits while he

was still working. On March 10, 2013, he requested a hearing on

the matter. The Department objected to the timeliness of

claimant's request for a hearing. Following extended
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proceedings, an Administrative Law Judge sustained the timeliness

objection and upheld the initial determinations. The

Unemployment Insurance Appeal Board agreed and this appeal by

claimant ensued.

We affirm. Labor Law § 620 (1) (a) provides that a

claimant who is dissatisfied with an initial determination issued

by the Department must request a hearing within 30 days of the

date of mailing or personal delivery of the determination, unless

he or she is prevented from doing so by physical or mental

incapacity (see Matter of Hill [Commissioner of Labor], 113 AD3d

1015, 1015 [2014]; Matter of Yamamura [Commissioner of Labor],

111 AD3d 1047, 1048 [2013]). Here, claimant's request for a

hearing was clearly untimely. Claimant does not assert statutory

grounds for relief, but instead maintains that he is a victim of

identity theft, and that he never received the determinations

because they were mailed to an incorrect address. Even if this

constituted a legitimate excuse for the failure to request a

timely hearing, claimant has not put forth any proof to

substantiate this claim. The record discloses that the mailing

address that the Department used was based upon information that

claimant himself supplied when he filed his claims for benefits,

which was the same address contained on various documents

maintained by claimant's employer. Although it appears that

claimant resided at a number of different addresses during the

time period that he applied for benefits, there is no indication

that he provided the Department with a change of address

notification (see Matter of Yamamura [Commissioner of Labor], 111

AD3d at 1048). Moreover, claimant's testimony that he never

resided at the Woodhaven address was inconsistent with his later

admission that he used this address on his 2008 W-4 form. 

Notably, he never put forth any proof that he was a victim of

identity theft and he did not appear at the final administrative

hearing. In view of the foregoing, the Board properly ruled that

claimant's request for a hearing was untimely (see Matter of

Randell [Commissioner of Labor], 105 AD3d 1243, 1243-1244 [2013];

Matter of Mack [Catherwood], 28 AD2d 1020, 1020-1021 [1967]).

Garry, J.P., Rose, Devine and Clark, JJ., concur.
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court