Opinion
527826
04-18-2019
In the Matter of the Claim of Efim VITOMSKY, Appellant. v. COMMISSIONER OF LABOR, Respondent.
Efim Vitomsky, New York City, appellant pro se.
Efim Vitomsky, New York City, appellant pro se.
Before: Lynch, J.P., Clark, Mulvey, Devine and Aarons, JJ.
MEMORANDUM AND ORDERClaimant, the director of the City University of New York Kingsborough Community College's Taxi Institute, was discharged from employment for directing a staff member to sign certification of completion cards for students who had not completed their requisite three-hour course on wheelchair accessibility. Claimant subsequently applied for unemployment insurance benefits, and the Department of Labor found him eligible to receive benefits because his employer failed to substantiate its decision to terminate claimant's employment due to misconduct. The employer requested a hearing, after which an Administrative Law Judge, among other things, sustained the employer's objection and overruled the Department's initial determination. Upon administrative appeal, the Unemployment Insurance Appeal Board upheld the Administrative Law Judge's decision denying claimant benefits. Claimant's subsequent applications to reopen and reconsider were denied by the Board in January and April 2018 decisions. Claimant now appeals from the Board's April 2018 decision denying his application to reopen and reconsider the denial of his first application to reopen.
We affirm. "The Board's decision to grant or deny an application to reopen 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 Saintalbord [Premier Care Staffing, Inc., Commissioner of Labor], 146 A.D.3d 1256, 1256, 45 N.Y.S.3d 713 [2017] [internal quotation marks and citations omitted]; see Matter of Green [Village of Hempstead, Commissioner of Labor], 80 A.D.3d 954, 954, 914 N.Y.S.2d 456 [2011] ; Matter of Boone [Shore Rd. Community Serv., Sweeney], 245 A.D.2d 617, 620, 664 N.Y.S.2d 679 [1997] ; see generally Labor Law § 534 ; 12 NYCRR 463.6 [a] ). Here, inasmuch as claimant dedicates his argument to challenging the merits of the Board's underlying September 2017 decision, he has failed to allege how the Board abused its discretion in denying his application to reopen the Board's January 2018 decision denying his initial application to reopen. Moreover, as claimant's second application to reopen was not made within 30 days of the Board's September 2017 decision, claimant's arguments relative to the merits of the September 2017 decision are not properly before this Court (see Matter of Saintalbord [Premier Care Staffing, Inc., Commissioner of Labor], 146 A.D.3d at 1256–1257, 45 N.Y.S.3d 713 ; Matter of Wood [Commissioner of Labor], 24 A.D.3d 854, 855, 805 N.Y.S.2d 682 [2005] ; Matter of Alfaro [Commissioner of Labor], 2 A.D.3d 961, 961, 767 N.Y.S.2d 689 [2003] ; Matter of Rivera [King Tut Boutique, Hartnett], 147 A.D.2d 754, 754, 537 N.Y.S.2d 635 [1989] ).
We also note that claimant's notice of appeal challenges only the Board's January 2018 decision and does not attempt to appeal from the Board's September 2017 decision (see
Lynch, J.P., Clark, Mulvey, Devine and Aarons, JJ., concur.
ORDERED that the decision is affirmed, without costs.
Matter of Saintalbord [Premier Care Staffing, Inc., Commissioner of Labor], 146 A.D.3d at 1257, 45 N.Y.S.3d 713 n).