State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 2, 2015 520021 

________________________________

In the Matter of NEW YORK CITY 

CHESS INC.,

Appellant.

MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: May 5, 2015

Before: Lahtinen, J.P., Garry, Lynch and Clark, JJ.

__________

Law Office of Brian L. Greben, Great Neck (Brian L. Greben

of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Dawn

A. Foshee of counsel), for respondent.

__________

Appeals (1) from a decision of the Unemployment Insurance

Appeal Board, filed January 14, 2014, which denied an application

by New York City Chess Inc. to reopen a prior decision, and (2)

from a decision of said Board, filed July 3, 2014, which, upon

reconsideration, adhered to its prior decision.

The Department of Labor found that certain tutors who

worked for New York City Chess Inc. (hereinafter NYCC) were its

employees and assessed NYCC for additional unemployment insurance

contributions based on remuneration paid to these individuals. 

NYCC disagreed with this determination and requested a hearing

that was scheduled for January 17, 2013. When NYCC failed to

appear, an Administrative Law Judge (hereinafter ALJ) issued a

default decision. Thereafter, NYCC applied to reopen this

decision and a hearing was scheduled for October 3, 2013. NYCC

again failed to appear and the ALJ issued a second default
-2- 520021 

decision. NYCC applied to reopen the second default decision and

a hearing was scheduled for November 5, 2013. Following the

hearing, the ALJ denied the application to reopen and sustained

the initial determination. NYCC appealed to the Unemployment

Insurance Appeal Board, and the Board affirmed the ALJ's

decision. NYCC then applied to reopen this decision and the

Board granted the application, but adhered to its prior decision. 

NYCC appeals from both of the Board's decisions.

Preliminarily, we note that "[t]he decision to grant an

application to reopen is a matter committed to the sound

discretion of the Board and, absent an abuse of that discretion,

such decision will not be disturbed" (Matter of Monroe

[Commissioner of Labor], 59 AD3d 836, 837 [2009], lv dismissed 13

NY3d 879 [2009]; see Matter of Lee [Commissioner of Labor], 84

AD3d 1652, 1653 [2011]; Matter of Chanthyasack [Commissioner of

Labor], 37 AD3d 963, 964 [2007]). It is not an abuse of

discretion for the Board to deny an application to reopen where

the party making it has not demonstrated a reasonable excuse for

failing to appear at a hearing (see Matter of Cedeno

[Commissioner of Labor], 83 AD3d 1350, 1351 [2011]; Matter of

Monroe [Commissioner of Labor], 59 AD3d at 837; see also 12 NYCRR

461.8). Here, NYCC's excuse for not appearing at the October 3,

2013 hearing was that it did not regularly check its post office

box and did not receive written correspondence notifying it of

the hearing until the date of the hearing, which was too late for

an appearance. Inasmuch as the Board could conclude that this

was not a reasonable excuse, we cannot say that the Board abused

its discretion in denying NYCC's application to reopen the ALJ's

second default decision (see Matter of Chanthyasack [Commissioner

of Labor], 37 AD3d at 964). Therefore, we find no reason to

disturb the Board's decisions and need not address the merits of

the NYCC's underlying claim.

Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.
-3- 520021 

ORDERED that the decisions are affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court