Opinion
2013-03-7
In the Matter of the Claim of Pamala M. McCAULEY, Appellant. v. COMMISSIONER OF LABOR, Respondent.
Pamala M. McCauley, Herkimer, appellant pro se. Eric T. Schneiderman, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.
Pamala M. McCauley, Herkimer, appellant pro se. Eric T. Schneiderman, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 12, 2012, which denied claimant's application to reopen a prior decision.
The Department of Labor issued determinations that, among other things, disqualified claimant from receiving unemployment insurance benefits and charged her with a recoverable overpayment. Claimant failed to appear for a hearing she had requested on the matter and, as such, the determinations were upheld on default. Subsequent efforts to reopen the matter were rejected given claimant's failure to appear at hearings scheduled upon them. One such application was initially treated by the Unemployment Insurance Appeal Board as an appeal and dismissed upon the basis that she had not demonstrated good cause for her repeated failure to appear. Claimant appealed to this Court from the Board's decision. The Board thereafter rescinded the decision and directed that the application to reopen be resolved on the merits following a hearing. An Administrative Law Judge ultimately denied the application, and the Board affirmed in 2012.
Initially, inasmuch as claimant is aggrieved by the Board's 2012 decision “in essentially the same manner” as she was by the appealed-from decision finding a lack of good cause for her default, we will consider the merits of her arguments despite her failure to appeal from the 2012 decision ( Matter of Ford [Commissioner of Labor], 12 A.D.3d 955, 955, 785 N.Y.S.2d 576 [2004] ). Claimant testified that she failed to appear at the scheduled telephonic hearings due to her inability to afford reliable telephone service, despite being employed at that time and living on her own. She further admitted that, despite knowing that the contact information she had previously provided was outdated, she had not updated that information prior to the last scheduled hearing. Under these circumstances, we find no abuse of discretion in the Board's denial of claimant's application to reopen ( see Matter of Monroe [Commissioner of Labor], 59 A.D.3d 836, 837, 874 N.Y.S.2d 277 [2009],lv. dismissed13 N.Y.3d 879, 893 N.Y.S.2d 830, 921 N.E.2d 597 [2009];Matter of Chanthyasack [Commissioner of Labor], 37 A.D.3d 963, 964, 829 N.Y.S.2d 749 [2007] ).
ORDERED that the decision is affirmed, without costs.