State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 10, 2016 518506 

________________________________

In the Matter of WAYMAC, INC.,

Doing Business as ALL 

COUNTY EXPRESS AIR SHUTTLE,

Appellant.

MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: September 20, 2016

Before: Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.

__________

Roach Bernard, PLLC, Lynbrook (Seida R. Bernard of

counsel), for appellant.

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

A. Foshee of counsel), for respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed May 8, 2013, as superceded by decision filed October

16, 2015, which, among other things, denied an application of

Waymac, Inc. to reopen a prior decision.

Waymac, Inc., an airport shuttle service, requested a

hearing in connection with an initial determination from the

Department of Labor finding that Waymac was liable for additional

unemployment insurance contributions based on remuneration paid

to certain individuals deemed to be employees. Waymac appeared

at a scheduled hearing but was not prepared to proceed, resulting

in the first default decision, dated May 2, 2012, being entered.

Waymac applied to reopen that decision and, at the next scheduled

hearing, Waymac requested additional time to consult with

counsel. As a result, a second default decision, dated December
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27, 2012, was entered. Thereafter, Waymac again applied to

reopen the decision but did not appear at the third scheduled

hearing, apparently due to notice of the hearing not being timely

received by Waymac's counsel. In February 2013, the

Administrative Law Judge (hereinafter ALJ) denied Waymac's

application to reopen, entered a third default decision and

closed the case, noting that any further recourse required an

appeal to the Unemployment Insurance Appeal Board. Upon

administrative appeal, the Board, by decision filed May 8, 2013,

dismissed the appeal and continued in effect the May 2, 2012

decision. Waymac appealed from this decision.

During the pendency of that appeal,1 the Board reopened the

matter on its own motion and referred the matter back to an ALJ

to treat the appeal as an application to reopen the three default

decisions and determine whether the reasons offered amounted to

good cause pursuant to 12 NYCRR 461.8. The ALJ, considering the

matters in reverse chronological order, found good cause for the

defaults in February 2013 and December 2012. Nevertheless, with

regard to the May 2012 default decision, the ALJ found that

Waymac did not present good cause for the five-month delay in

applying to reopen the default decision, denied its application

to reopen that decision and continued in effect the May 2, 2012

decision. The Board, by decision dated October 16, 2015,

affirmed.

Initially, we note that, although Waymac appealed only from

the May 8, 2013 decision, the merits of the Board's October 16,

2015 decision are reviewable by this Court on the pending appeal

as Waymac "is aggrieved by that decision 'in essentially the same

manner' as [it] was by the appealed-from decision" (Matter of

McCauley [Commissioner of Labor], 104 AD3d 973, 973 [2013],

1 It should be noted that this Court was informed by the

Attorney General that the Board intended to reopen and reconsider

the matter and requested that the appeal from the May 2013

decision be held in abeyance. This Court was then notified about

an October 16, 2015 decision by the Board that remained adverse

to Waymac's interest, and Waymac was afforded the opportunity to

file a supplemental brief with regard to that decision. 
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quoting Matter of Ford [Commissioner of Labor], 12 AD3d 955, 955

[2004]; see Matter of Hotaling [Commissioner of Labor], 8 AD3d

766, 766 [2004]; Matter of Mauskoff [Commissioner of Labor], 79

AD2d 790, 791 [1980]; Matter of Olan [Ross], 60 AD2d 113, 115-116

[1977]). Turning to the merits, "[t]he decision as to whether to

reopen a case rests primarily within the discretion of the Board

and, absent a showing that the Board abused its discretion, its

decision will not be disturbed" (Matter of Hughes [Commissioner

of Labor], 136 AD3d 1085, 1086 [2016] [internal quotation marks

and citations omitted]; see Matter of Tavares [Commissioner of

Labor], 118 AD3d 1243, 1244 [2014]). Furthermore, where a party

does not demonstrate good cause for a default, it is not an abuse

of discretion for the Board to deny an application to reopen (see

12 NYCRR 461.8; Matter of New York City Chess Inc. [Commissioner

of Labor], 130 AD3d 1125, 1126 [2015]; Matter of Bowe [Southern

Tier Home Bldrs. Assn.-Commissioner of Labor], 121 AD3d 1150,

1151 [2014]). Here, the May 2012 default decision explicitly

stated that an application to reopen the decision must be made

within a reasonable time. The president of Waymac acknowledged

that, after it was ascertained that the matter was beyond his

attorney's expertise, he took no action with regard to an

application to reopen that decision for five months. Under these

circumstances, the Board's finding that there was no good cause

shown for the five-month delay in seeking to reopen the default

decision is supported by substantial evidence and will not be

disturbed.

Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.,

concur.
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court