In re the Claim of Spencer

Appellate Division of the Supreme Court of New York

In re the Claim of Spencer

49 A.D.3d 1047, 852 N.Y.2d 853

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

DecidedMarch 20, 2008

StatusPublished

Cited by5 cases

This text of 49 A.D.3d 1047 (In re the Claim of Spencer) 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.

Bluebook

In re the Claim of Spencer, 49 A.D.3d 1047, 852 N.Y.2d 853 (N.Y. Ct. App. 2008).

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Opinion

When this matter was last before us, this Court affirmed a decision of the Unemployment Insurance Appeal Board, filed February 15, 2005, which, upon reconsideration, ruled that claimant was disqualified from receiving unemployment insurance benefits because he was discharged from his employment due to misconduct (22 AD3d 1010 [2005], lv denied 7 NY3d 701 [2006]). Claimant thereafter unsuccessfully sought to reopen the Board’s prior decision, prompting this appeal.

“Whether to grant an application to reopen a decision is within the discretion of the Board, and, absent a showing that [1048]*1048the Board abused its discretion, its decision will not be disturbed” (Matter of Kendricks [Commissioner of Labor], 1 AD3d 682, 682-683 [2003] [citation omitted]; see Matter of Hardamon [Menorah Home & Hosp. for Aging—Commissioner of Labor], 17 AD3d 764, 765 [2005]). We perceive no abuse of that discretion here. Not only did claimant fail to demonstrate that the evidence now offered was unavailable at the original hearing, but the crux of that evidence is unrelated to the incident that led to his discharge. Under such circumstances, the Board quite properly denied claimant’s application to reopen.

Mercure, J.P., Peters, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the decision is affirmed, without costs.

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When this matter was last before us, this Court affirmed a decision of the Unemployment Insurance Appeal Board, filed February 15, 2005, which, upon reconsideration, ruled that claimant was disqualified from receiving unemployment insurance benefits because he was discharged from his employment due to misconduct (22 AD3d 1010 [2005], lv denied 7 NY3d 701 [2006]). Claimant thereafter unsuccessfully sought to reopen the Board’s prior decision, prompting this appeal.

“Whether to grant an application to reopen a decision is within the discretion of the Board, and, absent a showing that [1048]*1048the Board abused its discretion, its decision will not be disturbed” (Matter of Kendricks [Commissioner of Labor], 1 AD3d 682, 682-683 [2003] [citation omitted]; see Matter of Hardamon [Menorah Home & Hosp. for Aging—Commissioner of Labor], 17 AD3d 764, 765 [2005]). We perceive no abuse of that discretion here. Not only did claimant fail to demonstrate that the evidence now offered was unavailable at the original hearing, but the crux of that evidence is unrelated to the incident that led to his discharge. Under such circumstances, the Board quite properly denied claimant’s application to reopen.

Mercure, J.P., Peters, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

49 A.D.3d 1047, 852 N.Y.2d 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-spencer-nyappdiv-2008.

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