IN RE: the Claim of Reynaldo FLORES (2025)

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 26, 2023, which denied claimant's application for reopening and reconsideration of a prior decision.

By decision filed November 9, 2022, the Unemployment Insurance Appeal Board, among other things, ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct, charged him with recoverable overpayments, reduced his right to receive future benefits by eight effective days and imposed a monetary penalty.  The record does not indicate that claimant filed a timely appeal from that decision;  rather, on December 2, 2022, claimant applied to the Board for reopening and reconsideration of its November 2022 decision.  By decision filed February 22, 2023, the Board denied this request.  In response, on March 20, 2023, claimant filed a second application – this time seeking reopening and reconsideration of the Board's February 2023 decision denying his December 2022 application to reopen and reconsider the Board's November 2022 decision.  By decision filed April 26, 2023, the Board denied claimant's application.  Claimant appeals from the Board's April 2023 decision.

An appeal from “[t]he denial of an application for reopening and reconsideration will only 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” (Matter of Lambrecht [Commissioner of Labor], 102 A.D.3d 1050, 1051, 957 N.Y.S.2d 924 [3d Dept. 2013] [internal quotation marks and citations omitted];  accord Matter of Jimeno [Commissioner of Labor], 231 A.D.3d 1467, 1468, 220 N.Y.S.3d 491 [3d Dept. 2024]).  Although claimant indeed filed his December 2022 application for reopening and reconsideration within 30 days of the Board's November 2022 determination, claimant does not appeal from the Board's February 2023 denial of that application.  Rather, claimant filed a second application in March 2023 seeking reopening and reconsideration of the Board's February 2023 decision denying his December 2022 application.  As claimant has only appealed from the Board's April 2023 decision denying his second application for reopening and reconsideration, the merits of the Board's original determination are not properly before us (see Matter of DeSiato [Ross], 74 A.D.2d 988, 988–989, 426 N.Y.S.2d 180 [3d Dept. 1980] [“To allow such review whenever the (B)oard subsequently declines to reconsider a prior decision would forever extend the time for taking an appeal”];  see e.g. Matter of Jimeno [Commissioner of Labor], 231 A.D.3d at 1468, 220 N.Y.S.3d 491;  Matter of Shaw [Commissioner of Labor], 197 A.D.3d 1451, 1451–1452, 151 N.Y.S.3d 911 [3d Dept. 2021]).  Contrary to claimant's assertion, the face of the Board's November 2022 decision plainly advised claimant of his right to appeal such decision to this Court within 30 days of the mailing thereof.

To the extent that claimant challenges the denial of his March 2023 application for reopening and reconsideration in his reply brief, such argument is not properly before us (see Matter of Jimeno [Commissioner of Labor], 231 A.D.3d at 1468, 220 N.Y.S.3d 491;  Congregation Machne Ravtov Ya v. Central Hudson Gas & Elec. Corp., 198 A.D.3d 1237, 1238, 153 N.Y.S.3d 910 [3d Dept. 2021];  Matter of Rosenfelder [Community First Holdings, Inc.-Commissioner of Labor], 137 A.D.3d 1438, 1440, 28 N.Y.S.3d 137 [3d Dept. 2016]).  Were we to conclude otherwise, we would find that the Board did not abuse its discretion in denying claimant's application (see Matter of Aiello [Commissioner of Labor], 227 A.D.3d 1256, 1257, 210 N.Y.S.3d 831 [3d Dept. 2024];  Matter of Shaw [Commissioner of Labor], 197 A.D.3d at 1451, 151 N.Y.S.3d 911).  Accordingly, the Board's decision is affirmed.

ORDERED that the decision is affirmed, without costs.

Garry, P.J.

Lynch, Reynolds Fitzgerald, Fisher and McShan, JJ., concur.