
    The People of the State of New York, Plaintiff, v. Donald Page, Defendant.
    Supreme Court, Special Term, Albany County,
    May 20, 1963.
    
      Louis J. Lefhowits, Attorney-General (Frank E. Sacco of counsel), for plaintiff. Thomas A. Vitansa for defendant.
   Lawrence H. Cooke, J.

In this action instituted to recover overpayments of unemployment insurance benefits in the sum of $1,518.75, plaintiff moves for summary judgment. It appears that three initial determinations were made by the Industrial Commissioner on December 28, 1959, finding that the total of said overpayments was in said sum and, by the pleadings, it is admitted that a copy of said determinations was mailed on the same day, concerning which no request for hearing was made or appeal taken thereafter by defendant.

Defendant contends that this action is barred by the Statute of Limitations because it was not brought within two years from accrual. This being an action for overpayment, said defense is not tenable (Civ. Prac. Act, § 48, subds. 1, 5; 1947 Atty. Gen. 227).

There was no request by defendant for a hearing and it appears that defendant failed to exhaust the prescribed statutory procedure which was available to him (Matter of Ferraioli, 7 A D 2d 819; People v. Sheiman, 207 Misc. 788; Matter of Jamaica Concrete Corp. [Wedeen], 185 Misc. 655; Matter of Denemark [State Ind. Commr.], 184 Misc. 402; People v. Gallagher, N. Y. L. J., Oct. 29, 1956, p. 7, col. 4; Labor Law. §§ 620, 626). The motion by plaintiff for summary judgment is granted.  