The Appellate Division, Third Department is the only court in New York State that reviews decisions of the Unemployment Insurance Appeal Board. (See Labor Law § 624.) Since the rules governing unemployment insurance appeals are unique (see § 800.17) and they are not printed in the Rules of the Appellate Division, Third Department, I receive a lot of questions pertaining to this area of appellate practice. In this article, I will go over the process of taking and perfecting unemployment insurance appeals in the Third Department. If you have any questions, please do not hesitate to contact me directly.
How to Take an Appeal
If you are adversely affected by the Unemployment Appeal Board’s decision and wish to appeal, your very first step is to send written notice to the Appeal Board, not the Appellate Division, Third Department, of your intent to appeal. This written notice must be postmarked within 30 days of the date the Board’s decision was mailed to you.
The Appellate Division, Third Department reviews the Board’s decision using the original record. The original record includes all the papers considered by the Board and the hearing transcript, if any.
The Commissioner of Labor is represented by the Attorney General’s office. It is the responsibility of the Attorney General to send the original record to the Third Department. If you need a copy of the record, you may send a written request to: Attorney General, Labor Bureau, Employment Security Section, 120 Broadway, 26th Floor, New York, NY 10271.
How to Perfect an Appeal
Within 9 months from the date of the letter to the Unemployment Insurance Appeal Board (not from receipt of your letter) indicating you are appealing the Board’s decision, you must file and serve your opening brief or brief and appendix.
At a minimum, you must attach to your brief the copy of the decision of the Unemployment Insurance Appeals Board that you are appealing and the copy of the notice you sent to the Board indicating your intent to appeal to the Appellate Division, Third Department.
If you would like to cite to other documents contained in the original record, you may prepare an appendix. This appendix can be attached to your brief or it can be a separately bound document.
You must file the original and 6 copies of your brief in the Appellate Division, with proof of service of one copy on the Attorney General and one copy on any party that appeared before the Appeal Board, e.g., the claimant or the employer. No filing fee is required.
After your brief is accepted for filing, the Attorney General is responsible for filing the original record and the brief of the Commissioner of Labor and serving you with one copy of the brief. You may then file a reply brief, if you wish.
Oral argument is not permitted except by permission of the Court. A written application to request oral argument must be made within 10 days after you have filed your brief and the application must be granted by the Court in order to argue before the Court.
Please contact me with any questions regarding preparing and filing any appeal. Counsel Press provides a full spectrum of appellate services. Through our local offices, we offer in-depth knowledge of rules and procedures in all state and federal appellate courts nationwide. Located in our Walton, NY office, I am an expert in the Appellate Division, Third Department; and I also specialize in the New York State Court of Appeals, New York State Appellate Division (First, Second and Fourth Departments), New York State Appellate Term (First and Second Departments) and the U.S. Court of Appeals for the Second Circuit.