IN RE: the Claim of John TORRES (2026)

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 27, 2025, which, among other things, denied an application by claimant to reopen and reconsider a prior decision.

In April 2020, claimant filed a claim for workers' compensation benefits, effective March 9, 2020, as a result of the COVID–19 pandemic.  In September 2020, the Department of Labor issued initial determinations finding claimant ineligible to receive, from March 16, 2020 to August 23, 2020, unemployment insurance benefits and federal pandemic unemployment compensation (hereinafter FPUC) on the ground that he was not totally unemployed due to his continued employment with his employer (see 15 USC § 9023).  The Department also charged claimant with a recoverable overpayment of unemployment insurance benefits and FPUC, and, in light of its finding that claimant made willful misrepresentations in order to receive benefits, imposed a monetary penalty and a forfeiture of future benefit days.¹  At a November 2020 hearing, which was requested by claimant, he admitted receiving the subject benefits while working three or more days per week during the relevant time period due to his financial circumstances at that time.  Upon the Administrative Law Judge (hereinafter ALJ) seeking clarification, claimant denied making a false statement and expressed his desire to excuse himself from the hearing.  The ALJ then stated a withdrawal decision would be issued and explained the consequences to claimant;  to wit, that the Department's initial determinations would remain in effect because claimant elected not to proceed at the hearing.  The ALJ granted claimant's application to withdraw his hearing request and continued in effect the initial determinations.  Several years later, in March 2024, claimant applied to reopen the withdrawal decision, and, during an ensuing March 2025 hearing, claimant was afforded an opportunity to listen to the recording of his prior hearing and provide testimony in support of his application to reopen.  The ALJ subsequently denied claimant's application to reopen in a March 2025 decision, finding that claimant failed to provide a compelling reason or a reasonable excuse for waiting more than three years to seek reopening of the withdrawal decision.  On appeal to the Unemployment Insurance Appeal Board, the Board affirmed the decision of the ALJ in a May 2025 decision, from which claimant appeals.

We affirm.  A case may be reopened following withdrawal of a hearing request if good cause for the withdrawal is demonstrated (see 12 NYCRR 461.8;  see also Matter of Mwanika [JM Murray Ctr., Inc.-Commissioner of Labor], 192 AD3d 1300, 1301 [3d Dept 2021];  see generally Labor Law § 622;  12 NYCRR 463.6[c] ).  “If such party shows good cause for ․ his [or her] withdrawal of his [or her] request for a hearing, he [or she] shall be entitled to a hearing on the merits and the case shall be heard at the same time the application is acted upon” (12 NYCRR 461.8).  The good-cause calculus may include the extent to which a request for reopening was made within a reasonable time (see Matter of Absolute Home Health Care, Inc. [Commissioner of Labor], 199 AD3d 1135, 1136–1137 [3d Dept 2021];  Matter of Mwanika [JM Murray Ctr., Inc.-Commissioner of Labor], 192 AD3d at 1301).  “The Board's decision to grant or deny an application to reopen is within the discretion of the Board and, absent a showing that the Board abused its discretion, its decision will not be disturbed” (Matter of Absolute Home Health Care, Inc. [Commissioner of Labor], 199 AD3d at 1136 [internal quotation marks and citations omitted];  see Matter of Schuler [LaserShip, Inc.–Commissioner of Labor], 175 AD3d 1688, 1689 [3d Dept 2019];  see generally Labor Law § 534;  12 NYCRR 463.6[a] ).

There is no dispute that claimant waited more than three years before seeking to reopen the ALJ's withdrawal decision.  Although claimant contends that he was confused and/or overwhelmed at the initial hearing in 2020, our review of that hearing reflects otherwise.  The ALJ explained to claimant his rights, read the initial determinations to him and confirmed that claimant understood the issues and procedures.  Despite stating that he was ready to proceed, claimant soon thereafter expressed his desire to excuse himself from the hearing notwithstanding the ALJ explaining to him the consequences of that decision including that the Department's initial determinations would remain in effect.  Claimant's contention that he was confused and/or overwhelmed is not only belied by the record but simply presented a credibility determination for the Board to resolve (see e.g. Matter of Stennett [Commissioner of Labor], 210 AD3d 1154, 1155–1156 [3d Dept 2022];  Matter of Lee [Commissioner of Labor], 84 AD3d 1652, 1653 [3d Dept 2011] ).  In view of the foregoing, including the lack of any compelling explanation for the substantial delay in claimant's request to reopen, we find no abuse of discretion in the Board's denial of his application to reopen the withdrawal decision (see Matter of Absolute Home Health Care, Inc. [Commissioner of Labor], 199 AD3d at 1137;  Matter of Lee [Commissioner of Labor], 84 AD3d at 1653).  Therefore, we need not address the merits of his claims.  To the extent that claimant's remaining contentions are properly before us, they have been considered and found to be without merit.

ORDERED that the decision is affirmed, without costs.

FOOTNOTES

1.   The amounts of recoverable overpayment and monetary penalty were subsequently reduced by the Department in November 2020.

Garry, P.J., Clark, Pritzker, Fisher and Corcoran, JJ., concur.