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In the Matter of the Claim of

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


February 9, 2012

IN THE MATTER OF THE CLAIM OF TUHIN S. DUTTA, APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Rose, Malone Jr., Stein and Garry, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 28, 2011, which dismissed claimant's appeal from the decision of an Administrative Law Judge.

Claimant was initially disqualified from receiving unemployment insurance benefits on the basis that he voluntarily left his employment without good cause. He subsequently requested a hearing, but did not appear, and a default decision was then issued by an Administrative Law Judge (hereinafter ALJ) sustaining the initial determination. Claimant made two more requests for a hearing, but failed to appear each time, resulting in two additional ALJ determinations denying the applications to reopen and continuing the prior decision. Claimant appealed to the Unemployment Insurance Appeal Board, which reopened the case to consider the ALJ's decision, noted that claimant had not offered good cause for his repeated failures to appear and continued the ALJ's decision. Noting that no appeal lies from a default, the Board then dismissed the appeal. Claimant now appeals from the Board's decision.

We affirm. As noted by the Board, claimant did not appear at any of the hearings conducted before the ALJ. Claimant's conclusory assertion that he did not appear because he was unable to find an attorney to represent him at the second of the three scheduled hearings is not a basis to disturb the Board's decision (see e.g. Matter of Green [Commissioner of Labor], 87 AD3d 1222 [2011]). Thus, the Board did not abuse its discretion in denying claimant's application to reopen the ALJ's decision (see Matter of Maymi [Commissioner of Labor], 42 AD3d 845, 846 [2007]). Inasmuch as a claimant is permitted to appeal a decision of an ALJ within 20 days of the mailing or personal delivery of the notice of decision, provided that he or she "appeared at the hearing" (Labor Law § 621 [1]), the Board properly found that claimant was precluded from taking an appeal. In view of the foregoing, we need not address the merits of the denial of his claim for benefits (see Matter of Davis [Commissioner of Labor], 71 AD3d 1369, 1370 [2010]; Matter of Popescu [Commissioner of Labor], 16 AD3d 757, 758 [2005]).

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

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120209

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