In re the Claim of De Siato

Mar 27, 1980
Versions:74 A.D.2d 988
426 N.Y.S.2d 180
1980 N.Y. App. Div. LEXIS 10805

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 13, 1978, which denied claimant’s application to reopen and reconsider a prior decision finding claimant ineligible to receive benefits. On September 8,1977 the board found claimant ineligible to receive benefits because he was not totally unemployed, charged him with a recoverable overpayment of $3,990 and imposed a forfeiture of 80 effective days. No appeal was taken from the board’s determination within 30 days (Labor Law, § 624). By letter dated August 29, 1978 claimant made an application to the board pursuant to section 534 of the Labor Law for a reopening and reconsideration of its prior decision, which application was denied on November 13, 1978. It is this latest determination which claimant appeals. We reject claimant’s attempt to review on this appeal the merits of the board’s September 8, 1977 decision. To allow such review whenever the board subsequently declines to reconsider a prior decision would forever extend the time for taking an appeal. The denial of an application for reopening and reconsideration will *989only bring up for review the merits of the original determination when the application is made within the 30-day period during which that original determination could be appealed. We also note that review of the merits can be obtained by appealing a determination by the board to adhere to its initial position after an application to reopen and reconsider is granted, since that action by the board has the effect of a new decision (see Matter of Rinaldi [General Off. Serv. Bur. — Corsi], 281 App Div 1051). The question of whether to reopen a decision is a matter addressed to the discretion of the board (Matter of Capital Hill Reporting [Ross], 64 AD2d 778). Where, as here, there is no basis for the conclusion that the board abused its discretion in refusing to reopen its earlier decision, the board’s determination must be upheld. Decision affirmed, without costs. Mahoney, P. J., Greenblott, Main, Casey and Herlihy, JJ., concur.