Matter of New York City Chess Inc. (Commissioner of Labor)

Matter of New York City Chess Inc. (Commissioner of Labor) 2015 NY Slip Op 05741 Decided on July 2, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 2, 2015
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[*1]In the Matter of NEW YORK CITY CHESS INC., Appellant.

and

COMMISSIONER OF LABOR, Respondent.

Calendar Date: May 5, 2015
Before: Lahtinen, J.P., Garry, Lynch and Clark, JJ.

Law Office of Brian L. Greben, Great Neck (Brian L. Greben of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.

MEMORANDUM AND ORDER

Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed January 14, 2014, which denied an application by New York City Chess Inc. to reopen a prior decision, and (2) from a decision of said Board, filed July 3, 2014, which, upon reconsideration, adhered to its prior decision.

The Department of Labor found that certain tutors who worked for New York City Chess Inc. (hereinafter NYCC) were its employees and assessed NYCC for additional unemployment insurance contributions based on remuneration paid to these individuals. NYCC disagreed with this determination and requested a hearing that was scheduled for January 17, 2013. When NYCC failed to appear, an Administrative Law Judge (hereinafter ALJ) issued a default decision. Thereafter, NYCC applied to reopen this decision and a hearing was scheduled for October 3, 2013. NYCC again failed to appear and the ALJ issued a second default

decision. NYCC applied to reopen the second default decision and a hearing was scheduled for November 5, 2013. Following the hearing, the ALJ denied the application to reopen and sustained the initial determination. NYCC appealed to the Unemployment Insurance Appeal Board, and the Board affirmed the ALJ's decision. NYCC then applied to reopen this decision and the Board granted the application, but adhered to its prior decision. NYCC appeals from both of the Board's decisions.

Preliminarily, we note that "[t]he decision to grant an application to reopen is a matter committed to the sound discretion of the Board and, absent an abuse of that discretion, such decision will not be disturbed" (Matter of Monroe [Commissioner of Labor], 59 AD3d 836, 837 [2009], lv dismissed 13 NY3d 879 [2009]; see Matter of Lee [Commissioner of Labor], 84 AD3d 1652, 1653 [2011]; Matter of Chanthyasack [Commissioner of Labor], 37 AD3d 963, 964 [*2][2007]). It is not an abuse of discretion for the Board to deny an application to reopen where the party making it has not demonstrated a reasonable excuse for failing to appear at a hearing (see Matter of Cedeno [Commissioner of Labor], 83 AD3d 1350, 1351 [2011]; Matter of Monroe [Commissioner of Labor], 59 AD3d at 837; see also 12 NYCRR 461.8). Here, NYCC's excuse for not appearing at the October 3, 2013 hearing was that it did not regularly check its post office box and did not receive written correspondence notifying it of the hearing until the date of the hearing, which was too late for an appearance. Inasmuch as the Board could conclude that this was not a reasonable excuse, we cannot say that the Board abused its discretion in denying NYCC's application to reopen the ALJ's second default decision (see Matter of Chanthyasack [Commissioner of Labor], 37 AD3d at 964). Therefore, we find no reason to disturb the Board's decisions and need not address the merits of the NYCC's underlying claim.

Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.

ORDERED that the decisions are affirmed, without costs.