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In the Matter of the Claim of

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


January 17, 2013

IN THE MATTER OF THE CLAIM OF ZAINAB S. FERNANDEZ, RESPONDENT. KEVIN WATKINS, APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: December 17, 2012

Before: Peters, P.J., Mercure, Rose, Lahtinen and Spain, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 29, 2011, as superceded by decision filed May 21, 2012, which determined representation fees for claimant's representative in her application for unemployment insurance benefits.

Kevin Watkins represented claimant in her successful claim for unemployment insurance benefits. In January 2011, the Unemployment Insurance Appeal Board fixed his representation fee at $400. Claimant applied for reconsideration and, in a decision filed on April 29, 2011, the Board modified the determination, setting the fee at $150. Watkins appealed to this Court and, while the appeal was pending, the Board reopened its determination. In a decision dated May 21, 2012, the Board rescinded the April 29, 2012 decision and, after reviewing the records, again fixed the fee at $150.

Although Watkins did not appeal from the May 2012 decision, insofar as he remains aggrieved by that decision "in essentially the same manner" as the April 2011 decision, we will consider the merits of his contention in the context of the May 2012 decision (Matter of Ford [Commissioner of Labor], 12 AD3d 955, 955 [2004]). Here, inasmuch as the Board was acting within its administrative capacity when it fixed the representation fee in question, an appeal of its determination to this Court is precluded (see Matter of Raff & Becker [Unemployment Ins. Appeal Bd.], 208 AD2d 1086, 1086 [1994], lv dismissed and denied 86 NY2d 776 [1995]; Matter of Dressman v Unemployment Ins. Appeal Bd., 91 AD2d 1147, 1147 [1983]). Accordingly, the appeal must be dismissed.

Peters, P.J., Mercure, Rose, Lahtinen and Spain, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130117

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