Opinion
533806
02-16-2023
In the Matter of the Claim of Sondia KOMAR, Appellant. v. COMMISSIONER OF LABOR, Respondent.
Sondia Komar, Flushing, appellant pro se. Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.
Sondia Komar, Flushing, appellant pro se.
Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.
Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Fisher, JJ.
MEMORANDUM AND ORDER
Lynch, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 8, 2021, as superseded by a decision filed February 1, 2022, which denied claimant's application to reopen and reconsider a prior decision.
By decision filed September 6, 2018, the Unemployment Insurance Appeal Board affirmed a decision of the Administrative Law Judge finding, among other things, that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause, charged her with a recoverable overpayment of benefits and reduced her right to receive future benefits on the basis that she made willful false statements to obtain benefits. In December 2020, claimant applied to reopen that decision. The Board, in a decision filed February 8, 2021, denied the application to reopen. Claimant appealed from that decision. During the pendency of this appeal, the Board, by decision filed February 1, 2022, reopened and rescinded, among other things, the February 8, 2021 decision and, finding no good cause to excuse claimant's delay of over two years in applying to reopen its September 6, 2018 decision, denied claimant's application.
Although claimant appealed the Board's September 6, 2018 decision, it was not perfected.
The February 8, 2021 decision, as well as a subsequent decision, were rescinded because they did not contain findings of fact or the reasons for denying claimant's applications to reopen (see Matter of Mercado [American Para Professional Sys. of NYC, Inc. – Commissioner of Labor], 175 A.D.3d 1734, 1736, 110 N.Y.S.3d 99 [3d Dept. 2019] ).
Initially, we note that the merits of the February 1, 2022 decision are reviewable by this Court on the instant appeal as claimant is aggrieved by that decision "in essentially the same manner" as she was by the appealed-from decision ( Matter of Ford [Commissioner of Labor], 12 A.D.3d 955, 955, 785 N.Y.S.2d 576 [3d Dept. 2004] ; see Matter of Harry's Nurses Registry, Inc. [Commissioner of Labor], 171 A.D.3d 1410, 1411 n. 1, 99 N.Y.S.3d 113 [3d Dept. 2019], lv denied 34 N.Y.3d 907, 2020 WL 205522 [2020] ; Matter of Tracy [Commissioner of Labor], 145 A.D.3d 1218, 1219 n, 42 N.Y.S.3d 483 [3d Dept. 2016] ; Matter of McCauley [Commissioner of Labor], 104 A.D.3d 973, 973, 961 N.Y.S.2d 811 [3d Dept. 2013] ; but see Matter of Casiano [Commissioner of Labor], 108 A.D.3d 892, 893 n. 2, 969 N.Y.S.2d 591 [3d Dept. 2013] ; Matter of Qing Yu [Commissioner of Labor], 32 A.D.3d 1095, 1096, 820 N.Y.S.2d 868 [3d Dept. 2006] ). To that end, "[w]hether to grant an application to reopen and reconsider a prior decision is a matter committed to the Board's discretion and, absent an abuse of that discretion, the Board's decision will not be disturbed" ( Matter of Basil [Commissioner of Labor], 153 A.D.3d 1547, 1547, 61 N.Y.S.3d 714 [3d Dept. 2017] ). Upon our review of the record and claimant's application, we find no basis upon which to conclude that the Board abused its discretion in denying claimant's application to reopen its September 6, 2018 decision (see Matter of Battaglia [Commissioner of Labor], 177 A.D.3d 1074, 1075, 112 N.Y.S.3d 822 [3d Dept. 2019] ; Matter of Tanasa [Commissioner of Labor], 164 A.D.3d 998, 1000, 82 N.Y.S.3d 251 [3d Dept. 2018] ; Matter of Brockman [Sweeney], 244 A.D.2d 687, 688, 665 N.Y.S.2d 356 [3d Dept. 1997] ). To the extent that claimant challenges the underlying merits of the September 6, 2018 decision, such arguments are not properly before us (see Matter of Shaw [Commissioner of Labor], 197 A.D.3d 1451, 1451–1452, 151 N.Y.S.3d 911 [3d Dept. 2021] ; Matter of Vitomsky [Commissioner of Labor], 171 A.D.3d 1388, 1389, 98 N.Y.S.3d 357 [3d Dept. 2019] ).
Garry, P.J., Aarons, Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that the decision is affirmed, without costs.