
    In the Matter of the Claim of Ben-Zion Friedman, Appellant. Lillian Roberts, as Commissioner of Labor, Respondent.
   —Casey, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 29, 1984.

Claimant was initially ruled ineligible for benefits on the grounds that he was not totally unemployed and/or he was not available for employment. Benefits received by him were ruled recoverable and a forfeiture of effective days was imposed as a penalty for willfully making false statements to obtain benefits. Claimant requested a hearing and the Commissioner of Labor objected upon the ground that claimant failed to make his request within the statutory 30-day period (see, Labor Law § 620 [1] [a]). The Administrative Law Judge sustained the objection and the Board affirmed in the decision on appeal herein. Thereafter, the Commissioner moved for reopening and reconsideration of the decision. The Commissioner sought to withdraw its procedural objection and have the matter decided on the merits. The Board granted the application to reopen but adhered to its prior decision.

We agree with the contention of both claimant and the Commissioner that, in the absence of any testimony or documentary proof that claimant had been mailed a notice of determination, the decision must be reversed and the matter remitted for further proceedings to consider the merits underlying the claim of entitlement to unemployment insurance (see, Matter of Gonzalez [Ross] 47 NY2d 922).

Decision reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Main, J. P., Casey, Mikoll and Yesawich, Jr., JJ., concur.  