Stennett v. Comm'r of Labor

210 A.D.3d 1154

177 N.Y.S.3d 790

In the Matter of the Claim of Ray STENNETT, Appellant.

v.COMMISSIONER OF LABOR, Respondent.

533630

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 7, 2022

Decided and Entered: November 3, 2022

Ray Stennett, Larchmont, appellant pro se.

Letitia James, Attorney General, New York City (Camille J. Hart of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 9, 2020, which denied claimant's application for reopening and reconsideration of a prior decision.

The Department of Labor issued an initial determination finding, among other things, that claimant did not have the required employment and earnings in the base or alternate base period to establish a claim for unemployment insurance benefits. On February 3, 2020, claimant mailed a request for a hearing. A hearing notice, dated February 20, 2020, was mailed to claimant informing him that a hearing was scheduled for March 4, 2020. Following claimant's failure to appear at that hearing, the Administrative Law Judge (hereinafter ALJ) issued a default decision upholding the initial determination. Shortly thereafter, claimant applied to reopen the decision and, following a hearing, the ALJ denied the application. Upon administrative appeal, the Unemployment Insurance Appeal Board, by decision filed November 9, 2020, affirmed the ALJ's decision. 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 Absolute Home Health Care, Inc. [Commissioner of Labor], 199 A.D.3d 1135, 1136, 157 N.Y.S.3d 565 [3d Dept. 2021] [internal quotation marks and citations omitted]). "Whether to grant an application to reopen a decision is within the discretion of the Board[,] and, absent a showing that the Board abused its discretion, its decision will not be disturbed" ( Matter of N.Y. Loves Yoga, LLC [Commissioner of Labor], 190 A.D.3d 1168, 1168, 136 N.Y.S.3d 807 [3d Dept. 2021] [internal quotation marks and 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's testimony established that, although he was aware that a response to his hearing request was forthcoming, neither he nor his wife was vigilant about picking up the mail from the post office and, therefore, the notice of hearing was not collected from the post office until the date of the hearing, at which point it was too late to appear. To the extent that claimant offered various, and at times inconsistent, excuses for not retrieving the mail in a timely manner, including that he was experiencing underlying health problems, this created a credibility issue for the Board to resolve (see Matter of Lee [Commissioner of Labor], 84 A.D.3d 1652, 1653, 922 N.Y.S.2d 880 [3d Dept. 2011] ). Under the circumstances, the...