Opinion
534068
11-17-2022
In the Matter of the Claim of Darryl HARRIS, Appellant. v. COMMISSIONER OF LABOR, Respondent.
Darryl Harris, New York City, appellant pro se. Letitia James, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.
Darryl Harris, New York City, appellant pro se.
Letitia James, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.
Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 21, 2020, which denied claimant's application to reopen and reconsider a prior decision.
In January 2020, the Department of Labor issued an initial determination finding claimant eligible to receive unemployment insurance benefits. The employer objected on the ground that claimant was discharged for misconduct. Following a February 13, 2020 hearing, at which claimant failed to appear, the Administrative Law Judge (hereinafter ALJ) sustained the employer's objection, overruled the initial determination and found that claimant was ineligible for benefits. The ALJ's decision was issued on February 14, 2020. In July 2020, claimant requested that the matter be reopened after he contacted the Department of Labor on an unrelated matter and was told of the existing overpayment of benefits. Following a hearing, at which both the employer and claimant appeared, the ALJ granted claimant's application to reopen, overruled the employer's objection and affirmed the Department's initial determination granting benefits. Upon administrative appeal by the employer, the Unemployment Insurance Appeal Board reversed the ALJ's determination and denied claimant's application to reopen, finding that the application was not made within a reasonable amount of time. Claimant appeals.
We affirm. "A case may be reopened following a default upon a showing of good cause if such request is made within a reasonable time" ( Matter of Schuler [LaserShip, Inc.-Commissioner of Labor], 175 A.D.3d 1688, 1689, 108 N.Y.S.3d 221 [3d Dept. 2019] [internal quotation marks and citations omitted]; see Matter of Absolute Home Health Care, Inc. [Commissioner of Labor], 199 A.D.3d 1135, 1136, 157 N.Y.S.3d 565 [3d Dept. 2021] ). "The decision as to whether to grant an application to reopen a claim will not be disturbed absent an abuse of the Board's sound discretion" ( Matter of Knott [Commissioner of Labor] , 121 A.D.3d 1154, 1154, 992 N.Y.S.2d 909 [3d Dept. 2014] [citations omitted]; see Matter of Zion [Commissioner of Labor], 175 A.D.3d 1683, 1685, 108 N.Y.S.3d 223 [3d Dept. 2019], lv dismissed 35 N.Y.3d 938, 124 N.Y.S.3d 324, 147 N.E.3d 594 [2020] ).
Claimant testified that he received the letter containing the ALJ's February 14, 2020 decision but that he did not read it, admitting that he was "negligent" and had "tossed [the letter] to the side." Claimant did not provide any other explanation for delaying five months before he applied to reopen that decision. Under these circumstances, we cannot conclude that the Board abused its discretion in finding that claimant had not made the application to reopen within a reasonable time (see Matter of Zion [Commissioner of Labor], 175 A.D.3d at 1685, 108 N.Y.S.3d 223 ; Matter of Knott [Commissioner of Labor], 121 A.D.3d at 1154, 992 N.Y.S.2d 909 ). Accordingly, the Board's decision to deny the application will not be disturbed.
Garry, P.J., Lynch, Ceresia and McShan, JJ., concur.
ORDERED that the decision is affirmed, without costs.