A-750-2132

 

Index 1020.13    

 

 

 

 

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

 

 

November, 2010

 

 

INTERPRETATION SERVICE – BENEFIT CLAIMS
HEARINGS AND APPEALS
Referee Hearing, right to

 

A party does not have good cause for failure to appear at a hearing, and its application to reopen that hearing should not be granted, where the failure to appear at the prior hearing was due to the party’s failure to properly read the notice of hearing.

A.B. 546157

The Department of Labor issued the initial determinations disqualifying the claimant from receiving benefits, effective December 3, 2007, on the basis that the claimant voluntarily separated from employment without good cause; charging the claimant with an overpayment of $810 in benefits recoverable pursuant to Labor Law § 597 (4); and reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made wilful misrepresentations to obtain benefits.  The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken.  There was an appearance by the claimant.  By decision filed April 25, 2008 (A.L.J. Case No. 008-07007), the Administrative Law Judge overruled the initial determinations.

The employer applied to reopen the decision of the Administrative Law Judge filed April 25, 2008.  Upon due notice to all parties, a hearing was held at which all parties were accorded a full opportunity to be heard and at which testimony was taken.  There were appearances by the claimant and on behalf of the employer.  By decision filed June 18, 2008 (A.L.J. Case No. 008-09351), the Administrative Law Judge granted the application to reopen and sustained the initial determinations.

The claimant appealed the Judge’s decision to the Appeal Board.

By decision filed October 2, 2008 (A.B. Case No. 542751), the Board rescinded the decision of the Administrative Law Judge filed June 18, 2008, insofar as it sustained the initial determinations, and remanded the case to the Hearing Section for a hearing and a decision on the remanded issues.  The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken.  There were appearances by the claimant and on behalf of the employer and the Commissioner of Labor.  By decision filed April 1, 2009 (A.L.J. Case No. 008-23497), the Administrative Law Judge sustained the initial determinations.

The claimant applied to the Appeal Board, pursuant to Labor Law § 620 (3), for a reopening and reconsideration of the Judge’s decision.  Due deliberation having been had, the Board has reopened and reconsidered the decision of the Administrative Law Judge, appealed the Judge’s decision to the Board.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT:  A hearing was held on April 18, 2008 in Garden City, New York.  The employer did not appear at that hearing because the vice president, representing the employer, went to the Hauppauge office.  He went to the Hauppauge office because he read the top part of the notice, which had a Hauppauge address, but failed to look further down on the notice.  The vice president admits that it was his own fault that the employer did not appear.

OPINION:  The credible evidence establishes the employer failed to appear at the hearing held on April 18, 2008 because the vice president, acting as the representative of the employer, did not read the entire notice, only reading the top of the document and not reading any further down on the page, and mistakenly went to the Hauppauge office.  The employer has not established good cause for its failure to appear where such failure to appear was due to the employer’s failure to read the entire document accurately to discern where the hearing was being held.  As the employer has not established good cause for its failure to appear at the hearing on April 18, 2008, the employer’s failure to appear should not be excused, and the application to reopen is denied.

DECISION:  The decision of the Administrative Law Judge is reversed.

The employer’s application to reopen A.L.J. Case No. 008-07007 is denied.

The decision in A.L.J. Case No. 008-07007 is continued in effect.

The initial determinations, disqualifying the claimant from receiving benefits, effective December 3, 2007, on the basis that the claimant voluntarily separated from employment without good cause; charging the claimant with an overpayment of $810 in benefits recoverable pursuant to Labor Law § 597 (4); and reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made wilful misrepresentations to obtain benefits, are overruled.

The claimant is allowed benefits with respect to the issues decided herein.