In re the Claim of Spanierman , 51 A.D.2d 1087 ( 1976 )

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 20, 1975, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner holding claimant ineligible to receive benefits effective February 25, 1974 because of no work or earnings in covered employment in her base period. Claimant, on her initial claim for benefits filed on November 12, 1973, was ruled ineligible on the ground of unavailability for employment during the period of November 12, 1973 to February 25, 1974 by a referee’s decision filed on March 20, 1974. A constructive claim was thereafter filed on claimant’s behalf effective February 25, 1974 which established a base period from February 26, 1973 to February 24, 1974. Although claimant was ultimately ruled eligible for benefits because of availability of employment under such claim, a determination was issued ruling claimant ineligible because she had not worked during the base period from February 26, 1973 to February 24, 1974. Claimant admittedly had not worked since February 20, 1973. This determination was sustained by a referee’s decision filed on March 25, 1975 and affirmed by the board by decision filed May 20, 1975 from which the present appeal has been taken. On this appeal claimant contends that she filed only one claim, that of November 12, 1973; that she knew nothing of a claim being filed on her behalf as of February 25, 1974; and any appeal she took was from the denial of benefits under her original claim filed on November 12, 1973. There is proof in the record that claimant did not receive the decision filed on March 20, 1974 disqualifying her on the ground she was not available for employment. Claimant testified, however, that after sending a tracer, she did eventually receive it in May of 1974. We find no record of an appeal from that decision. A decision of a referee, if not appealed from, is final on all questions of law and fact. (Labor Law, § 623.) On this appeal, therefore, there can be no consideration of such decision. The board determined on substantial evidence that the constructive claim filed on claimant’s behalf effective February 25, 1974 was invalid due to no work or earnings in covered employment during her base period, and we should not disturb that determination. Decision affirmed, without costs. Koreman, P. J., Sweeney, Kane, Mahoney and Main, JJ., concur.