In re the Claim of Smalt 79 A.D.2d 793

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 4, 1979, which, upon an appeal by the Industrial Commissioner, reversed the decision of an Administrative Law Judge and reinstated the determinations of the local office holding claimant ineligible to receive benefits because she was not totally unemployed, charging her with an overpayment of $5,700 in benefits ruled to be recoverable and finding that she willfully made false statements to obtain benefits by reason of which a forfeiture of 484 effective days was imposed. Following the filing of- claimant’s brief, the Attorney-General advised the court by letter that a review of the record indicated that the Industrial Commissioner’s appeal of the decision of the Administrative Law Judge was not filed within the time period prescribed by section 621 of the Labor Law. The issue of the timeliness of the appeal was not raised before the board. Accordingly, the court was informed that no brief would be filed on behalf of the Industrial Commissioner and it was requested that the matter be remitted to the board for appropriate disposition in accordance with section 621 of the Labor Law. Determination of appeal withheld for 20 days pending notification as to whether an application for reopening will be made to the board (see Matter of Michelfelder [Ross], 79 AD2d 791). Mahoney, P. J., Sweeney, Casey and Herlihy, JJ., concur.