IN RE: SUNNY'S LIMOUSINE SERVICE INC. (2019)

Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered October 23, 2017, granting respondents' cross motion to dismiss the petition to compel respondents to provide petitioner with notice and a hearing regarding petitioner's unemployment insurance law contributions, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

New York Labor Law § 620(2) provides that “[a]ny employer who claims to be aggrieved by the commissioner's determination of the amount of the employer's contributions ․ may apply to the commissioner for a hearing within thirty days after mailing or personal delivery of notice of such determination.”  Here, the Department of Labor sent a Notice of Determination of Contributions Due on April 5, 2013, and petitioner requested a hearing within 30 days thereof.  The parties dispute whether notice of the hearing set for July 13, 2015 before an administrative law judge was sent to petitioner.  Petitioner failed to appear at the hearing and the Department of Labor's determination was sustained.

Pursuant to 12 NYCRR 461.8, petitioner's remedy was to request that the administrative law judge reopen the claim (see also Matter of Green [Village of Hempstead–Commissioner of Labor], 80 A.D.3d 954, 914 N.Y.S.2d 456 [3d Dept. 2011]).  If the application to reopen the case is denied, petitioner may then appeal that decision to the Unemployment Insurance Appeal Board and then to the Appellate Division, Third Department, which will review the denial under an abuse of discretion standard (see Matter of Browne [Nassau BOCES–Commissioner of Labor], 153 A.D.3d 1073, 60 N.Y.S.3d 576 [3d Dept. 2017]; Labor Law § 624).

The record shows that petitioner has not exhausted its administrative remedies before seeking to litigate in court, which it was required to do (see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978]).  Under the circumstances presented herein, none of the exceptions to the exhaustion rule apply (id.).

We have considered petitioner's remaining arguments and find them unavailing.