                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   517203
________________________________

In the Matter of the Claim of
   KELLY A. PREYER,
                    Respondent.

IRENE S. DISCHE,
                    Appellant.              MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 10, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


     Gary Mailman, Princetown, New Jersey, for appellant.

      James W. Cooper, Warrensburg, for Kelly A. Preyer,
respondent.

      Eric T. Schneiderman, Attorney General, New York City (Dawn
A. Foshee of counsel), for Commissioner of Labor, respondent.

                             __________


Lynch, J.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed October 19, 2012, which ruled that the
employer's request for a hearing was untimely.

      Claimant served as the manager and rental agent for a
property located in the Town of Rhinebeck, Dutchess County owned
by Irene S. Dische. Following the termination of her services,
claimant filed a claim for unemployment insurance benefits and
the Department of Labor thereafter issued an initial
                              -2-                517203

determination, mailed to Dische on May 24, 2011, finding claimant
to be an employee and requiring Dische to pay contributions based
upon claimant's earnings. The letter was mailed to Dische's
address in Florida. Dische, who spent much of her time in
Europe, returned to Florida in August 2011 and, upon discovering
the letter, forwarded it to her accountant, who then submitted a
letter to the Department, dated August 18, 2011, disputing the
finding that claimant was an employee. By correspondence to the
accountant dated October 5, 2011, the Department acknowledged
receipt of the August 18, 2011 letter and directed him to refer
to the May 2011 letter "regarding [her] hearing rights." By
correspondence dated October 11, 2011, the accountant requested a
hearing on the matter. Following a hearing, an Administrative
Law Judge found that the October 2011 letter constituted the
first request for a hearing and, as such, was untimely and the
initial determination was continued in effect. The Unemployment
Insurance Appeal Board affirmed and Dische now appeals.

      We affirm. Pursuant to Labor Law § 620 (2), an employer
has 30 days to request a hearing after the mailing or personal
delivery of a notice of determination from which it claims to be
aggrieved (see 12 NYCRR 461.2; Matter of Hickman [Maximum
Litigation Support Servs., LLC—Commissioner of Labor], 111 AD3d
1000, 1000 [2013]). Notably, "'the statutory time period in
which to request a hearing is to be strictly construed, and the
statute contains no provision permitting an extension of time in
which an employer can request a hearing'" (Matter of Agarwal
[Bilingual Seit & Preschool, Inc.–Commissioner of Labor], 108
AD3d 807, 808 [2013], quoting Matter of Rago [Resource One,
Inc.–Commissioner of Labor], 22 AD3d 1002, 1002 [2005]). Here,
even assuming without deciding that the accountant's August 2011
letter constituted a request for a hearing, such request was
still made well after the statutory 30-day period within which
Dische was required to respond. In our view, the Department
properly sent its initial determination to the address that
Dische provided on the 1099 form that she issued to claimant.
Notably, at the hearing, Dische did not dispute delivery of the
initial determination; rather, she explained that she did not
have notice of it because she failed to arrange for all of her
                                -3-                  517203

mail to be forwarded.1 As such, we decline to disturb the
Board's decision that Dische's request for a hearing was
untimely. Dische's remaining contentions, including that she was
not accorded due process, have been examined and found to be
either unpreserved or without merit.

        Lahtinen, J.P., McCarthy, Rose and Devine, JJ., concur.



        ORDERED that the decisions are affirmed, without costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    1
        Given Dische's testimony in this regard, her argument
that the Department used an incorrect zip code is academic.
Moreover, this contention was not raised before the
Administrative Law Judge or the Board, and thus was not preserved
for our review (see Matter of Anderson [Lincoln Ctr. for the
Performing Arts, Inc.– Commissioner of Labor], 108 AD3d 900, 900
[2013]).
