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Miller v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF THE CLAIM OF SANTONIEO E. MILLER, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 30, 2009

Before: Cardona, P.J., Mercure, Spain, Kane and Garry, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 9, 2008, which denied claimant's application to reopen and reconsider a prior decision.

When this matter was last before us, this Court affirmed a decision of the Unemployment Insurance Appeal Board, filed August 17, 2007, which, upon reconsideration, ruled that claimant was disqualified from receiving unemployment insurance benefits due to his being discharged from his employment because of misconduct (50 AD3d 1432 [2008]). Claimant thereafter unsuccessfully sought to reopen the Board's prior decision and this appeal ensued.

"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]; accord Matter of Maymi [Commissioner of Labor], 42 AD3d 845, 846 [2007]). Inasmuch as claimant alleges no abuse of discretion, there is no basis to disburb the Board's decision denying his application to reopen (see Matter of Wood [Commissioner of Labor], 24 AD3d 854 [2005]; Matter of Petrillo [Commissioner of Labor], 308 AD2d 666, 667 [2003]). Furthermore, claimant's attempt to reargue the merits of the underlying determination are not properly before this Court.

Cardona, P.J., Mercure, Spain, Kane and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20091119

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