In re the Claim of Perito

306 A.D.2d 673, 759 N.Y.S.2d 919, 2003 N.Y. App. Div. LEXIS 6681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 2003
• Status: Published

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 31, 2002, which, inter alia, denied claimant’s application to reopen its prior decision ruling that claimant’s request for a hearing was untimely.

By initial determination dated August 12, 1998, claimant was notified that he was ineligible to receive unemployment insurance benefits because he was not totally unemployed and was charged a recoverable overpayment of $7,800. Although claimant received the determination shortly after it was mailed, he did not request a hearing until December 14, 1998 because he neglected to read the reverse side of the determination informing him of his rights. By decision dated April 2, 1999, the Unemployment Insurance Appeal Board affirmed the decision of the Administrative Law Judge ruling that claimant failed to proffer a reasonable excuse for failing to request an administrative hearing within the 30-day statutory time period (see Labor Law § 620 [1] [a]) and deemed claimant’s request for a hearing on the merits of the case untimely. Claimant’s subsequent request to reopen and reconsider the Board’s prior decision was denied on July 31, 2002, prompting this appeal.

Whether to grant an application to reopen is a matter within the discretion of the Board and, absent an abuse of discretion, it will not be disturbed (see Matter of Mian [Commissioner of Labor], 294 AD2d 699, 700 [2002]). Given claimant’s own admission that he failed to timely request a hearing, we find no reason to disturb the Board’s decision (see Matter of Sorge [Commissioner of Labor], 268 AD2d 668 [2000]).

Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.