IN RE: the Claim of Virginia HABERSTROH

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Virginia HABERSTROH, Appellant. Commissioner of Labor, Respondent.

Decided: June 25, 1998

Before WHITE, J.P., and YESAWICH, PETERS, SPAIN and GRAFFEO, JJ. Thaniel J. Beinert, New York City, for appellant. Dennis C. Vacco, Attorney General (Marjorie S. Leff, of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 23, 1996, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

After 24 years of employment as a school secretary, claimant took advantage of the employer's early retirement program.   In a March 25, 1996 decision, the Administrative Law Judge (hereinafter ALJ) overruled the initial determination disqualifying claimant from receiving benefits because she left her employment without good cause.   Both the employer and the Commissioner of Labor appealed the decision;  however, the Commissioner withdrew his appeal and on August 7, 1996 the Board dismissed the appeal.   Thereafter, on December 23, 1996, the Board reopened the case, reviewed the record and reversed the ALJ's decision.   Claimant contends that the Board abused its discretion by reopening the case 85 days after it had been dismissed.   We disagree.   Inasmuch as the Board has continuing jurisdiction and is not constrained by time limitations (see, Matter of Huber [Sweeney], 228 A.D.2d 841, 644 N.Y.S.2d 359), and as it erred in dismissing the appeal in the face of the employer's timely appeal, the only appropriate response was to reopen the case to preserve the employer's appellate rights.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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