MatterofAbreu[Commr.ofLabor]

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 18, 2014
• Docket: 518450
• Status: Published

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: September 18, 2014 518450 ________________________________

In the Matter of the Claim of RUBEN ABREU, Appellant.

E. ARMATA, INC., MEMORANDUM AND ORDER Respondent.

COMMISSIONER OF LABOR, Respondent. ________________________________

Calendar Date: August 4, 2014

Before: Stein, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Ruben Abreu, Mamaroneck, appellant pro se.

Frumkin & Hunter, LLP, White Plains (William Frumkin of counsel), for E. Armata, Inc., respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 28, 2013, which denied claimant's application for reopening and reconsideration of a prior decision.

Claimant, a driver who delivered wholesale produce, was discharged by the employer after evidence suggested that he had stolen 40 boxes of tomatoes by delivering them to the wrong address. The employer challenged the initial determination of the Department of Labor that claimant was entitled to unemployment insurance benefits and, following a hearing at which claimant did not appear, the Administrative Law Judge found that claimant had lost his employment due to disqualifying misconduct and was ineligible for benefits. The Administrative Law Judge -2- 518450

refused to reopen the hearing upon claimant's application, and the Unemployment Insurance Appeal Board affirmed. Claimant then moved for the Board to reopen and reconsider its decision, and he now appeals from the denial of that motion.

We affirm. Claimant argues that the Board erred in denying his application for reopening and reconsideration, a decision that "will not be disturbed absent a showing that the Board abused its discretion" (Matter of Lambrecht [Commissioner of Labor], 102 AD3d 1050, 1051 [2013]). Here, claimant premised his motion upon "new evidence" that had, in fact, already been placed before the Board. Suffice it to say, we perceive no abuse of discretion in the Board's refusal to reconsider the matter under these circumstances (see Matter of Higgins [Hudacs], 201 AD2d 810, 810 [1994]).

Stein, J.P., Garry, Lynch, Devine and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court