Two-part severance payout left worker stranded outside unemployment eligibility

The worker appealed to the Appellate Division, Third Department, raising several arguments. 

Two didn’t land. The court found his challenges to the original October 2023 severance determination were out of play – he had never requested a hearing on that determination at the time, so he couldn’t raise it now. The court also rejected his argument that the severance should have counted as regular wages, noting that New York law expressly excludes dismissal payments from that definition. 

But one argument stuck. 

The worker argued that his September 2023 filing should have been treated as his original claim – meaning that once the severance waiting period expired, benefits should have started flowing under the base period calculated back in September 2023, not the less favorable one triggered by the February 2024 refiling. 

The hearing judge had found that the February 2024 claim “superseded” the earlier one. But the Appeal Board had sidestepped the question entirely, dismissing it on procedural grounds without ever ruling on whether the Department was right to ignore the original base period.