Matter of Tawana M. Kendricks v Commissioner of Labor

Matter of Kendricks (Commissioner of Labor) 2003 NY Slip Op 18130 [1 AD3d 682] November 6, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of the Claim of Tawana M. Kendricks, Appellant. Commissioner of Labor, Respondent.

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 27, 2002, which denied claimant's application to reopen its prior decision.

Claimant appeals from the denial of her application to reopen and reconsider a decision of the Unemployment Insurance Appeal Board dated December 5, 2001 ruling that she was ineligible to receive unemployment insurance benefits. Whether to grant an application to reopen a decision is within the discretion of the Board and, absent a showing that the Board abused its discretion, its decision will not be disturbed (see Matter of Jackson [Commissioner of Labor], 306 AD2d 604 [2003]). Here, in support of her application to reopen, claimant offered no new evidence which was not before the Board on her initial application to reopen. Furthermore, the record belies her assertion that she was denied the right to cross-examine the employer's witness. Finally, claimant's attempts to argue the merits of the underlying determination denying her application for unemployment insurance benefits are not properly before this Court inasmuch as claimant failed to perfect her appeal therefrom.

Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.