In re the Claim of Petrillo

Appellate Division of the Supreme Court of New York

In re the Claim of Petrillo

308 A.D.2d 666, 764 N.Y.S.2d 666, 2003 N.Y. App. Div. LEXIS 9767

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 25, 2003

StatusPublished

Cited by2 cases

This text of 308 A.D.2d 666 (In re the Claim of Petrillo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Claim of Petrillo, 308 A.D.2d 666, 764 N.Y.S.2d 666, 2003 N.Y. App. Div. LEXIS 9767 (N.Y. Ct. App. 2003).

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Opinion

Lahtinen, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 2, 2002, which, inter alia, denied claimant’s application to reopen a previous decision denying his application for unemployment insurance benefits.

By initial determination effective June 13, 2000, the Department of Labor disqualified claimant from receiving unemployment insurance benefits on the ground that he voluntarily left his employment without good cause. Following two separate hearings before an Administrative Law Judge (hereinafter ALJ), the Unemployment Insurance Appeal Board remanded the case for a third hearing at which the employer was to produce payroll records and claimant was to produce documentary evidence that his physician advised him to leave his employment. However, after expressly acknowledging the May 3, 2001 hearing date in a letter to the ALJ, claimant failed to appear without providing notice. As such, based on the credible evidence that had been presented by the employer, the ALJ sustained the initial determination and disqualified claimant from receiving benefits. Thereafter, the ALJ denied claimant’s application to reopen. By decision filed October 2, 2001, the Board sustained claimant’s ineligibility for benefits and affirmed the denial of claimant’s request to reopen the matter. On March 8, 2002, claimant requested that the Board reopen [667]*667and reconsider its October 2, 2001 decision. The Board denied the application and this appeal by claimant ensued.

We affirm. “ ‘The denial of an application for reopening and reconsideration will only bring up for review the merits of the original determination when the application is made within the 30-day period during which that original determination could be appealed’ ” (Matter of Jackson [Commissioner of Labor], 306 AD2d 604, 604 [2003], quoting Matter of De Siato [Ross], 74 AD2d 988, 988-989 [1980]; see Matter of Becton [Commissioner of Labor], 278 AD2d 570 [2000], lv dismissed 96 NY2d 792 [2001]). Here, inasmuch as claimant did not object to the Board’s October 2, 2001 decision until March 8, 2002, his attempts to argue the merits of his disqualification from receiving unemployment insurance benefits are not properly before this Court (see Matter of Jackson [Commissioner of Labor], supra at 604). Moreover, given claimant’s complete failure to demonstrate that the Board abused its discretion in denying his application to reopen, its decision will not be disturbed (see Matter of Perito [Commissioner of Labor], 306 AD2d 673, 674 [2003]; Matter ofGbolo [Commissioner of Labor], 272 AD2d 775 [2000]).

Cardona, P.J., Mercure, Crew III and Peters, JJ., concur. Ordered that the decision is affirmed, without costs.

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Lahtinen, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 2, 2002, which, inter alia, denied claimant’s application to reopen a previous decision denying his application for unemployment insurance benefits.

By initial determination effective June 13, 2000, the Department of Labor disqualified claimant from receiving unemployment insurance benefits on the ground that he voluntarily left his employment without good cause. Following two separate hearings before an Administrative Law Judge (hereinafter ALJ), the Unemployment Insurance Appeal Board remanded the case for a third hearing at which the employer was to produce payroll records and claimant was to produce documentary evidence that his physician advised him to leave his employment. However, after expressly acknowledging the May 3, 2001 hearing date in a letter to the ALJ, claimant failed to appear without providing notice. As such, based on the credible evidence that had been presented by the employer, the ALJ sustained the initial determination and disqualified claimant from receiving benefits. Thereafter, the ALJ denied claimant’s application to reopen. By decision filed October 2, 2001, the Board sustained claimant’s ineligibility for benefits and affirmed the denial of claimant’s request to reopen the matter. On March 8, 2002, claimant requested that the Board reopen [667]*667and reconsider its October 2, 2001 decision. The Board denied the application and this appeal by claimant ensued.

We affirm. “ ‘The denial of an application for reopening and reconsideration will only bring up for review the merits of the original determination when the application is made within the 30-day period during which that original determination could be appealed’ ” (Matter of Jackson [Commissioner of Labor], 306 AD2d 604, 604 [2003], quoting Matter of De Siato [Ross], 74 AD2d 988, 988-989 [1980]; see Matter of Becton [Commissioner of Labor], 278 AD2d 570 [2000], lv dismissed 96 NY2d 792 [2001]). Here, inasmuch as claimant did not object to the Board’s October 2, 2001 decision until March 8, 2002, his attempts to argue the merits of his disqualification from receiving unemployment insurance benefits are not properly before this Court (see Matter of Jackson [Commissioner of Labor], supra at 604). Moreover, given claimant’s complete failure to demonstrate that the Board abused its discretion in denying his application to reopen, its decision will not be disturbed (see Matter of Perito [Commissioner of Labor], 306 AD2d 673, 674 [2003]; Matter ofGbolo [Commissioner of Labor], 272 AD2d 775 [2000]).

Cardona, P.J., Mercure, Crew III and Peters, JJ., concur. Ordered that the decision is affirmed, without costs.

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308 A.D.2d 666, 764 N.Y.S.2d 666, 2003 N.Y. App. Div. LEXIS 9767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-petrillo-nyappdiv-2003.

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