Opinion
February 4, 1999
Appeal from the Unemployment Insurance Appeal Board.
While claimant was employed as an administrative assistant at New York University Law School (hereinafter the employer), her supervisor informed her in December 1994 that her position would be eliminated as of January 6, 1995. Claimant, however, continued to work beyond that date as she was given additional time to look for a new job. On January 23, 1995, claimant asked her supervisor for permission to take a leave of absence. According to the supervisor, she told claimant that she had no authority to approve the request and that she would get back to her. According to claimant, the supervisor verbally approved the request. The next day, claimant left for Europe. In the days that followed; the supervisor, unaware that claimant had departed, made several attempts to reach her at home. By letter dated February 3, 1995, claimant was notified that the failure to report to work by February 7, 1995 would constitute job abandonment. Claimant contacted the employer on February 8, 1995 when she returned from her trip in an attempt to rectify the situation, to no avail.
Claimant thereafter filed an application for unemployment insurance benefits claiming that her position had been terminated. Although she initially qualified for benefits, she was ultimately disqualified and charged with a recoverable overpayment. A hearing ensued following which an Administrative Law Judge determined that she had willfully misrepresented her termination and was disqualified from receiving unemployment insurance benefits. Upon administrative appeal, the Unemployment Insurance Appeal Board affirmed and no further appeal was taken. Some nine months later, claimant applied to reopen the Board's decision. The denial of that application prompted this appeal.
The record fails to show that the Board abused its discretion in denying claimant's application to reopen ( see, Matter of Semiletov [Commissioner of Labor], 253 A.D.2d 931; Matter of Boone [Shore Rd. Community Serv. — Sweeney], 245 A.D.2d 617). In support of the application, claimant submitted "newly discovered" evidence consisting of a postal slip indicating that delivery of the February 3, 1995 letter was not attempted until February 7, 1995 and that the letter was not actually received by her until February 8, 1995. Under these circumstances, it was not an abuse of discretion for the Board to deny claimant's application to reopen predicated on this evidence because in the original proceeding claimant had already testified that she did not receive the letter until February 8, 1995 and a copy of the postmarked envelope was included in the record indicating a posting date of February 6, 1995.
In any event, substantial evidence supports the Board's conclusion that claimant had willfully and knowingly made a false statement on her application for benefits ( see, Matter of Carney [Sweeney], 236 A.D.2d 776; Matter of Wacher [Hartnett], 175 A.D.2d 975). Claimant was told by her employer that she could not return to work because she failed to appear when expected; nevertheless, claimant filed an application representing that her position had been eliminated. Moreover, there is substantial evidence in the record to support the conclusion that claimant had abandoned her job by taking an unapproved leave of absence. Consequently, the Board's decision shall be left undisturbed.
We also reject claimant's argument that the hearing transcript was replete with mistakes in the transcriptions and nontranscribed testimony necessitating a new hearing. The intermittent gaps in the transcript do not preclude a meaningful review of the Board's decision ( see, Matter of Crespo [Upton, Cohen Slamowitz — Commissioner of Labor], 251 A.D.2d 842). Claimant's remaining contentions have been reviewed and found to be without merit.
Cardona, P. J., Peters, Spain and Graffeo, JJ., concur.
Ordered that the decision is affirmed, without costs.