                          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
