Matter of Thomas (Commissioner of Labor)

Matter of Matter of Thomas (Commissioner of Labor) 2012 NY Slip Op 07361 Decided on November 8, 2012 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: November 8, 2012
514330 In the Matter of the Claim of

[*1]LAWRENCE W. THOMAS, Appellant.

and

COMMISSIONER OF LABOR, Respondent.

Calendar Date: September 26, 2012
Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ.


Lawrence W. Thomas, New York City, appellant pro
se.
Eric T. Schneiderman, Attorney General, New York
City (Marjorie S. Leff of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 3, 2011, which denied petitioner's application to reopen a prior decision.

In April 2002, claimant requested a hearing challenging 1987 determinations disqualifying him from receiving unemployment insurance benefits and charging him with a recoverable overpayment. An Administrative Law Judge's ensuing determination finding claimant's hearing request to be untimely was thereafter affirmed by the Unemployment Insurance Appeal Board. Claimant did not appeal that decision; however, he did send letters to the Board requesting a "fair hearing." Construing the most recent letter as a request to reopen, the Board subsequently issued a decision dated October 3, 2011 denying that application. This appeal ensued.

We affirm. "[T]he decision to grant an application for reopening is within the discretion of the Board and its decision will not be disturbed absent a showing that the Board abused its discretion" (Matter of Carlson [Commissioner of Labor], 95 AD3d 1589, 1590 [2012]; see Matter of Cedeno [Commissioner of Labor], 83 AD3d 1350, 1351 [2011]). Here, claimant has not alleged that the Board abused its discretion and there is no basis to disturb its decision denying his application (see Matter of Carlson [Commissioner of Labor], 95 AD3d at 1590). Although claimant attempts to argue the merits of the original determinations denying him benefits, he is precluded from doing so given his failure to pursue a timely challenge (see Matter of Miller [Commissioner of Labor], 67 AD3d 1246 [2009]). [*2]

Mercure, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.