OPENING DEFAULT- UNEMPLOYMENT INSURANCE APPEAL

MATTER OF BROWNE v. BOCES, 2017 NY Slip Op 6126 - NY: Appellate Div., 3rd Dept. 2017:

" "[A] case may be reopened following a default upon a showing of good cause if such request is made within a reasonable time" (Matter of Bowe [Southern Tier Home Bldrs. Assn.—Commissioner of Labor], 121 AD3d 1150, 1151 [2014]; see Matter of Hughes [Commissioner of Labor], 136 AD3d 1085, 1086 [2016]). "The decision as to whether to grant an application to reopen a claim will not be disturbed absent abuse of the Board's sound discretion" (Matter of Knott [Commissioner of Labor], 121 AD3d 1154, 1154 [2014]; see Matter of Barto [Commissioner of Labor], 110 AD3d 1418, 1419 [2013]). The record reflects that claimant waited 15 months to apply to reopen her claim. Although she testified that she received the May 2, 2014 default decisions that advised her that she may apply to reopen the decisions within a reasonable time, she admitted that she did not adhere to the portion of the decisions that explained how to apply to reopen the claim. Rather, claimant testified that she spent months contacting the wrong entities seeking information on how to reopen her claim. In our view, the Board did not abuse its discretion in finding that claimant, by waiting 15 months under these circumstances, had not applied to reopen her claim within a reasonable time (see Matter of Hughes [Commissioner of Labor], 136 AD3d at 1086; Matter of Knott [Commissioner of Labor], 121 AD3d at 1154). Accordingly, its decisions will not be disturbed."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

I believe the key factor in the ALJ's decision was Exhibit 2 presented here again. The assertions by the employer's representative that they tried to reach their witness by fax (when the witness had no fax) instead of by phone and that they attempted to reach the ALJ office 3 times without any supporting witness or documents simply did not establish "good cause" for a default.

The merits of the case: without going into specific detail, it appeared that the claimant's company laptop was broken and the employer, although notified of the issue, failed to repair it. The claimant had to use a personal computer to upload company information. On one occasion, a mistake was made which would not have been made if the company laptop was repaired and, based upon this one incident, the claimant was terminated and the employer claimed "misconduct".

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The last page of the decision issued on January 26, 2011 in favor of claimant.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Again, there were two days of hearings. A decision was issued on January 26, 2011 in favor of claimant. Rather than go into the details of the hearing, I am attaching the decision which addresses the issues. Here is page 2 (it states page 3 as the reverse of each page are instructions regarding appeal, etc.)

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

There were two days of hearings. A decision was issued on January 26, 2011 in favor of claimant. Rather than go into the details of the hearing, I am attaching the decision which addresses the issues. Here is page 1.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 9 was introduced by the claimant regarding the issue of misconduct. This is the employer's last evaluation of claimant, dated about a month before the claimant's discharge. As you will see, it was a positive evaluation and did not bring up any of the circumstances regarding the employer's claim of misconduct. This is page 3.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 9 was introduced by the claimant regarding the issue of misconduct. This is the employer's last evaluation of claimant, dated about a month before the claimant's discharge. As you will see, it was a positive evaluation and did not bring up any of the circumstances regarding the employer's claim of misconduct. This is page 2.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 9 was introduced by the claimant regarding the issue of misconduct. This is the employer's last evaluation of claimant, dated about a month before the claimant's discharge. As you will see, it was a positive evaluation and did not bring up any of the circumstances regarding the employer's claim of misconduct. This is page 1.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Again, exhibit 8 is almost always introduced in every hearing in which claimant's right to benefits is in issue. The employer is sent a questionnaire (Form MC99) asking for information about the claimant's discharge. Here is the second page in this case.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 8 is almost always introduced in every hearing in which claimant's right to benefits is in issue. The employer is sent a questionnaire (Form MC99) asking for information about the claimant's discharge. Here is the first page in this case.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 6 of Exhibit 7 - which is the employer's statement of the violation which formed the basis of the employer's claim of misconduct as set forth in the April 1, 2009 application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 5 of Exhibit 7 - which is the employer's statement of the violation which formed the basis of the employer's claim of misconduct as set forth in the April 1, 2009 application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 4 of Exhibit 7 - which is the acknowledgment of the claimant's receipt of the employer code of conduct, the violation of which formed the basis of the employer's claim of misconduct as set forth in the April 1, 2009 application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 3 of Exhibit 7 - which is the first page of the employer code of conduct forming the basis of the employer's claim of misconduct as set forth in the April 1, 2009 application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 2 of Exhibit 7 - which is the envelope used for sending the April 1, 2009 application to reopen. However, when an employer utilizes a self postage machine, as in this case, it may bring into question as to whether the item was actually mailed on the date of the self postage machine. Most experts agree that it is almost impossible to detect postal-meter fraud based on the numbers appearing in a printed stamp but with most machines, it is very difficult to backdate a postage meter. When the timeliness of a mailing becomes an issue in these cases, the use of an expert is not cost-effective and the employer will usually testify that it is common business practice not to back date and that items are mailed on the same day stamped.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 7 appears to be the same as Exhibit 3 but with certain attachments dealing with the allegations of misconduct. Here is page 1. Note the difference in font size which results in a change of formatting on the second to last paragraph.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 3 of Exhibit 6 - DOL's Application Claimant Information Screen. This page has information on the claimant's previous employer who is part of the claimant's base period but did not raise any objection to the claimant's claim for benefits.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 2 of Exhibit 6 - DOL's Application Claimant Information Screen. Note on the bottom that the claimant on the initial application stated that the reason for separation was "Lack of Work" while the employer is alleging "misconduct".

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 6 is important to note for all claimants faced with hearings - it is the DOL's Application Claimant Information Screen. Here is page 1. Note all the information that is set forth on the "Screen", from date of birth to pay information.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

This is Exhibit 5, which is a memorandum by the ALJ of the events set forth at the July 9, 2010 hearing (the second hearing described in my post of April 11, 2011).