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Howell v. Commissioner of Labor

State of New York Supreme Court, Appellate Division Third Judicial Department


March 18, 2010

IN THE MATTER OF THE CLAIM OF DELORES HOWELL, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: January 25, 2010

Before: Cardona, P.J., Peters, Lahtinen, Kavanagh and McCarthy, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 6, 2009, which denied claimant's application to reopen a prior decision.

Claimant worked as a messenger for an office services company. She was terminated from her position after she failed to pick up a package within 90 minutes of a customer's request or to notify the employer's dispatcher of her inability to do so in accordance with the employer's policy. The Unemployment Insurance Appeal Board disqualified her from receiving unemployment insurance benefits on the ground that her employment was terminated due to misconduct and also reduced her right to receive future benefits on the basis that she made willful misrepresentations to obtain benefits. The Board subsequently denied claimant's application to reopen its prior decision. Claimant appeals.

Initially, under the circumstances presented here, we find no abuse of discretion in the Board's failure to grant claimant's application to reopen its prior decision (see Matter of Monroe [Commissioner of Labor], 59 AD3d 836, 837 [2009], lv dismissed 13 NY3d 879 [2009]; Matter of Maymi [Commissioner of Labor], 42 AD3d 845, 846 [2007]). While claimant attempts to argue the merits of the Board's original decision denying her benefits, she is precluded from doing so given her failure to make her application to reopen within 30 days of such decision (see Matter of Wood [Commissioner of Labor], 24 AD3d 854 [2005]; Matter of Alfaro [Commissioner of Labor], 2 AD3d 961 [2003]). Accordingly, we affirm the Board's decision.

Cardona, P.J., Peters, Lahtinen, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20100318

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