IN RE: the Claim of Kathy MCHOLDER (2020)

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 28, 2018, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because she was terminated due to misconduct.

In 2018, upon its own motion, the Unemployment Insurance Appeal Board reopened its prior 1991 decision in claimant's case for the purpose of determining whether there had been compliance with the procedural safeguards and checklist set forth in the consent judgment in Municipal Labor Comm. v. Sitkin, 1983 WL 44294, 1983 U.S. Dist LEXIS 15013 (S.D. N.Y., Aug. 1, 1983, 79 Civ. 5899).  Upon doing so, the Board, in an August 2018 decision, identified two due process errors that occurred at the original hearing, but found that those procedural errors did not affect the outcome of claimant's case.  As such, the Board declined to review the underlying merits of the case and adhered to its prior decision finding, among other things, that claimant was disqualified from receiving unemployment insurance benefits because she lost her employment through misconduct.  Claimant appeals from the August 2018 decision.

In 2019, while this appeal was pending, the Board sua sponte reopened its August 2018 decision pursuant to Labor Law § 534 to remedy the due process errors that occurred at the underlying hearings in 1990 and 1991, and, upon request, this appeal was held in abeyance pending the Board's further proceedings.  In an August 2019 decision, the Board adhered to its August 2018 decision, which affirmed the underlying Board decision disqualifying claimant from receiving benefits.  This appeal was subsequently restored to the Court's calendar.

We affirm.  On this appeal, claimant fails to allege any procedural violations, address the procedural checklist violations/errors identified by the Board or otherwise challenge the remedy applied by the Board upon reopening.  Therefore, we find no reason to disturb the Board's decision (see Matter of Della Croce [Commissioner of Labor], 275 A.D.2d 850, 850, 713 N.Y.S.2d 512 [2000];  Matter of James [Commissioner of Labor], 273 A.D.2d 523, 523, 709 N.Y.S.2d 455 [2000];  Matter of Shindelman [Commissioner of Labor], 269 A.D.2d 727, 727, 704 N.Y.S.2d 895 [2000];  Matter of Mizzi [Commissioner of Labor], 259 A.D.2d 825, 826, 687 N.Y.S.2d 304 [1999] ).  We also note, consistent with the checklist and remediation standards, that the Board appropriately remedied the procedural violations that it identified by disregarding the testimony not subject to cross-examination and the testimony for which the claimant did not receive sufficient assistance in her cross-examination (cf. Matter of Thomas [Commissioner of Labor], 159 A.D.3d 1211, 1211, 69 N.Y.S.3d 844 [2018] ).  As the Board took appropriate remedial action and found that the due process errors did not affect the outcome of the case, the Board was not required to reconsider the merits of the matter.  As the merits of claimant's case were not addressed upon reopening, we decline to address the merits here (see Matter of Gandhi [Sweeney], 227 A.D.2d 722, 723, 642 N.Y.S.2d 564 [1996];  Matter of Blinder [Sweeney], 216 A.D.2d 654, 654, 627 N.Y.S.2d 807 [1995], lv denied 86 N.Y.2d 711, 635 N.Y.S.2d 948, 659 N.E.2d 771 [1995] ).  Accordingly, the Board's decision is upheld.

ORDERED that the decision is affirmed, without costs.

Garry, P.J.

Lynch, Clark, Devine and Reynolds Fitzgerald, JJ., concur.