Opinion
July 20, 1978
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 1977, which, upon reopening and reconsideration, rescinded its decision of October 14, 1975, reversed the decision of a referee and reinstated a determination of the Industrial Commissioner assessing the employer the sum of $5,948.01 for the period from January 1, 1971 to December 31, 1973. In 1975 the Industrial Commissioner, after an audit, assessed the employer additional contributions based on a finding of coverage with respect to stenotype reporters employed by appellant. On June 4, 1975 a referee reversed the commissioner. On October 14, 1975 the Unemployment Insurance Appeal Board affirmed the referee. No appeal was taken. Thereafter, specifically on January 6, 1976, the Court of Appeals in Matter of England (Levine) ( 38 N.Y.2d 829) reversed this court ( 45 A.D.2d 662) and held that reporters and typists were employees rather than independent contractors. Based on England the Industrial Commissioner applied to the board to reopen and reconsider the case. The application was granted and, upon reconsideration, the board rescinded its prior affirmance of the referee and sustained the determination of the commissioner. This appeal ensued. Appellant's contention that, in the absence of an appeal by the Industrial Commissioner of the board's original determination, the application for reconsideration should have been denied, must be rejected. Subdivision 3 of section 620 Lab. of the Labor Law specifically empowers the board to exercise continuing jurisdiction over referee's decisions, even in the absence of an appeal. Further, pursuant to section 534 Lab. of the Labor Law, the board has the power to modify or rescind decisions upon its own motion or, as here, upon application (Matter of Sinacori [Levine], 46 A.D.2d 973). The issue, then, of whether or not it should reopen a decision is a matter addressed to the discretion of the board (Matter of Dixon [Levine], 41 A.D.2d 868). Here, since the record readily reveals that all parties were aware of the pending decision of England in the Court of Appeals and its effect on this case, it does not appear that the board was unfair in granting the application for reopening and, as a result, rescinding its original determination. Decision affirmed, without costs. Mahoney, P.J., Greenblott, Sweeney, Larkin and Mikoll, JJ., concur.