Matter of Latissya A. Hardamon v Commissioner of Labor

Matter of Hardamon (Menorah Home & Hosp. for Aging\MCommissioner of Labor) 2005 NY Slip Op 02732 [17 AD3d 764] April 7, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 22, 2005

In the Matter of the Claim of Latissya A. Hardamon, Appellant. Menorah Home and Hospital for the Aging, Respondent; Commissioner of Labor, Respondent.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 13, 2004, which, inter alia, denied claimant's application to reopen and reconsider a prior decision.

Claimant worked as a dietary aide for a skilled nursing facility. She was terminated on January 27, 2003 for falsifying a doctor's note. Claimant was initially found eligible and received unemployment insurance benefits. Upon her employer's objection, however, a hearing was held, which claimant did not attend. After concluding that claimant had lost her employment through misconduct, the Administrative Law Judge overruled the initial determination and disqualified claimant from receiving unemployment insurance benefits. Claimant's subsequent application to reopen this decision was denied. She then appealed to the Unemployment Insurance Appeal Board, which, among other things, ruled that her application to reopen the Administrative Law Judge's initial decision was properly denied. Claimant now appeals.

"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" (Matter of Kendricks [Commissioner of Labor], 1 AD3d 682, 682-683 [2003] [citation omitted]; see Matter of Martinez [Commissioner of Labor], 288 AD2d 684, 684-685[*2][2001]). Here, claimant testified that she did not attend the hearing because she was receiving benefits and did not think that it was necessary. She offered no other excuse for her failure to appear. Under these circumstances, we find that the Board did not abuse its discretion in denying claimant's application (see e.g. Matter of Mian [Commissioner of Labor], 294 AD2d 699 [2002]).

Cardona, P.J., Crew III, Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.