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In re Becker

Supreme Court of New York, Third Department

July 11, 2013

In the Matter of KEVIN J. BECKER, Appellant. and COMMISSIONER OF LABOR, Respondent.

Calendar Date: June 6, 2013

Kevin J. Becker, Buffalo, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Before: Peters, P.J., Rose, Spain and McCarthy, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 23, 2012, which denied claimant's application to reopen a prior decision.

In June 2011, the Unemployment Insurance Appeal Board ruled that claimant was ineligible to receive unemployment insurance benefits for the period August 31, 2009 through September 6, 2009 because he did not comply with certification requirements, and for the period September 7, 2009 through December 20, 2009 because he did not comply with registration requirements. In September 2011, claimant applied to reopen the Board's decision. The Board denied claimant's application and this appeal ensued.

Initially, we note that claimant is precluded from arguing the merits of the Board's June 2011 decision inasmuch as he failed to make his application to reopen it within 30 days, the period in which the decision could have been appealed (see Matter of Lambrecht [Commissioner of Labor], 102 A.D.3d 1050, 1051 [2013]; Matter of Howell [Commissioner of Labor], 71 A.D.3d 1321 [2010]). As for claimant's application to reopen, the decision to grant or deny it "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 Chanthyasack [Commissioner of Labor], 37 A.D.3d 963, 964 [2007] [internal quotation marks and citation omitted]; see Matter of Spencer [Commissioner of Labor], 49 A.D.3d 1047, 1047-1048 [2008]). Upon reviewing the record here, we find nothing to indicate that the Board abused its discretion nor has claimant alleged such in support of his application (see Matter of Carlson [Commissioner of Labor], 95 A.D.3d 1589, 1590 [2012]; Matter of Spencer [Commissioner of Labor], 49 A.D.3d at 1048 [2008]). Consequently, we decline to disturb the Board's decision.

Peters, P.J., Rose, Spain and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.


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