In re Area Emporium LLC — 115 A.D.3d 1096

Majority

p. 1096

In the Matter of Area Emporium LLC, Appellant. Commissioner of Labor, Respondent.

[982 NYS2d 404]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 10, 2011, which dismissed claimant’s appeal from a decision of an Administrative Law Judge as untimely.

The Department of Labor issued initial determinations holding Area Emporium LLC (hereinafter AE) liable for additional unemployment insurance contributions on remuneration paid to massage therapists and yoga instructors. Although AE contested the determinations and requested a hearing, the Administrative Law Judge (hereinafter ALJ) issued a default decision after AE failed to appear. AE made an application to reopen and, by decision dated November 17, 2010, the ALJ granted the application, but sustained the initial determinations. On December 15, 2010, the attorney representing AE filed a notice of appeal and requested a waiver of the 20-day time period within which to appeal because AE’s principal had been out of the country. The Unemployment Insurance Appeal Board dismissed the appeal as untimely and this appeal ensued.

We affirm. Labor Law § 621 (1) requires that an appeal from a decision of an ALJ be taken within 20 days of the date the decision is mailed or personally delivered and this time require

p. 1097

ment is strictly construed (see Matter of Cunto [Commissioner of Labor], 109 AD3d 1076 , 1077 [2013]; Matter of Politis [Commissioner of Labor], 96 AD3d 1340 [2012]). Claimant’s request to appeal was made outside the 20-day time period and good cause for noncompliance has not been demonstrated (see Matter of Berisha [Commissioner of Labor], 89 AD3d 1309 , 1310 [2011], lv dismissed 19 NY3d 838 [2012]; Matter of Stuenzi [Commissioner of Labor], 304 AD2d 1014 , 1015 [2003]). Consequently, the merits of the case are not properly before us and we find no reason to disturb the Board’s dismissal of the appeal (see Matter of Cunto [Commissioner of Labor], 109 AD3d at 1077 ; Matter of Politis [Commissioner of Labor], 96 AD3d at 1340 ).

Peters, EJ., Stein, Garry and Egan Jr., JJ., concur.

Ordered that the decision is affirmed, without costs.

Cases cited

In re the Claim of Berisha 89 AD3d 1309 N.Y. App. Div. 2011-11-17 at 1310 p. 1097
Cope v. Barakaat 19 NY3d 838 N.Y. 2012-05-03 p. 1097
In re the Claim of Stuenzi 304 AD2d 1014 N.Y. App. Div. 2003-04-17 at 1015 p. 1097