In re the Claim of Thomas

100 A.D.3d 1133, 952 N.Y.S.2d 925

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 2012
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 3, 2011, which denied petitioner’s application to reopen a prior decision.

In April 2002, claimant requested a hearing challenging 1987 determinations disqualifying him from receiving unemployment insurance benefits and charging him with a recoverable overpayment. An Administrative Law Judge’s ensuing determination finding claimant’s hearing request to be untimely was thereafter affirmed by the Unemployment Insurance Appeal Board. Claimant did not appeal that decision; however, he did send letters to the Board requesting a “fair hearing.” Construing the most recent letter as a request to reopen, the Board subsequently issued a decision dated October 3, 2011 denying that application. This appeal ensued.

We affirm. “[T]he decision to grant an application for reopening is within the discretion of the Board and its decision will not be disturbed absent a showing that the Board abused its discretion” (Matter of Carlson [Commissioner of Labor], 95 AD3d 1589, 1590 [2012]; see Matter of Cedeño [Commissioner of Labor], 83 AD3d 1350, 1351 [2011]). Here, claimant has not alleged that the Board abused its discretion and there is no basis to disturb its decision denying his application (see Matter of Carlson [Commissioner of Labor], 95 AD3d at 1590). Although claimant attempts to argue the merits of the original determinations denying him benefits, he is precluded from doing so given his failure to pursue a timely challenge (see Matter of Miller [Commissioner of Labor], 67 AD3d 1246 [2009]).

Mercure, J.E, Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.