IN RE: the Claim of MARCITA G. CHILDS (2010)

MEMORANDUM AND ORDER

Calendar Date:  November 4, 2009

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 6, 2008, which denied claimant's application to reopen a prior decision.

Many of the pertinent facts of this case, in which claimant challenges a determination disqualifying her from receiving unemployment insurance benefits on the basis that she lost employment through misconduct, are set forth in our prior decision (42 AD3d 620 [2007] ).   Subsequent to our decision, claimant applied to reopen her case in August 2007 and that request was denied by a decision of the Unemployment Insurance Appeal Board filed on October 15, 2007.   Thereafter, claimant entered into a settlement agreement with the employer to discontinue complaints of discrimination that she had filed with the State Division of Human Rights.   As part of the settlement, claimant's termination of employment was converted to a voluntary resignation.   Based on this new development, claimant filed applications for reopening and reconsideration of her case in January 2008 and June 2008.   In a decision filed on August 6, 2008, the Board again denied claimant's request to reopen.   Claimant now appeals.

The decision as to whether to grant an application to reopen a decision is within the sound discretion of the Board and, absent a showing that it abused that discretion, its decision will not be disturbed (see Matter of Monroe [Commissioner of Labor], 59 AD3d 836, 837 [2009];  Matter of Chanthyasack [Commissioner of Labor], 37 AD3d 963, 964 [2007] ).   Here, claimant failed to demonstrate an abuse of discretion, inasmuch as the private settlement agreement between the parties is not binding upon the Board, which was free to make its own determination regarding the factual basis for claimant's discharge (see Matter of Waite [Town of Taghkank-Commissioner of Labor], 3 AD3d 766, 767 [2004];  Matter of Tucek [Big V Supermarkets-Commissioner of Labor], 277 A.D.2d 628, 629 [2000];  Matter of Napolitano [Commissioner of Labor], 264 A.D.2d 928, 928-929 [1999];  Matter of Briem [Ross], 71 A.D.2d 752, 752 [1979], affd 52 N.Y.2d 842 [1981] ).

Spain, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Michael J. Novack

Clerk of the Court