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In the Matter of the Claim of

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


November 8, 2012

IN THE MATTER OF THE CLAIM OF LAWRENCE W. THOMAS, APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

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

MEMORANDUM AND ORDER

Calendar Date: September 26, 2012

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

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]).

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

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121108

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