                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 18, 2014                    518365
________________________________

In the Matter of the Claim of
   MATTHEW R. CERICK,
                    Appellant.
                                             MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:    August 4, 2014

Before:    Lahtinen, J.P., Stein, Garry, Rose and Devine, JJ.

                              __________


        Matthew R. Cerick, Fairfax, appellant pro se.

      Eric T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for respondent.

                              __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed April 5, 2013, which, among other things, denied
claimant's application to reopen a prior decision.

      The Department of Labor issued an initial determination
finding that, effective May 5, 2011, claimant was ineligible to
receive unemployment insurance benefits because he voluntarily
left his employment without good cause. After claimant submitted
a hearing request, a hearing was scheduled for August 11, 2011.
However, neither claimant nor the employer appeared for the
hearing and a default decision was issued by the Administrative
Law Judge (hereinafter ALJ).1 On administrative appeal, the


    1
        Two subsequent hearings were scheduled in November 2011
and January 2012. Additional default decisions were issued upon
claimant's failure to appear at either of those hearings.
                               -2-                518365

Unemployment Insurance Appeal Board dismissed the appeal and
remitted the matter to the ALJ to treat the appeal as an
application to reopen the default decisions. On remittal, the
ALJ conducted a hearing and, among other things, denied
claimant's application to reopen the August 2011 default decision
and sustained the initial determination.2 The Board upheld the
ALJ's decision and this appeal by claimant ensued.

      We reverse. It is axiomatic that the party seeking to
reopen a decision must demonstrate good cause for the default
(see 12 NYCRR 461.8; Matter of Tavares [Commissioner of Labor],
118 AD3d 1243, 1244 [2014]), and the determination whether to
grant such an application will not be disturbed absent an abuse
of the Board's sound discretion (see Matter of Lee [Commissioner
of Labor], 84 AD3d 1652, 1653 [2011]; Matter of Childs [Kaleida
Health–Commissioner of Labor], 69 AD3d 1070, 1071 [2010], lv
dismissed 18 NY3d 837 [2011]). Under the circumstances here, we
are of the view that the Board abused its discretion in finding
that claimant did not demonstrate good cause for his failure to
appear at the August 2011 hearing and, therefore, in denying
claimant's application to reopen the default decision rendered as
a result thereof (see generally Matter of Romano [Buffalo Bd. of
Educ.-Commissioner of Labor], 256 AD2d 845, 845 [1998]).

      Sometime prior to the scheduled commencement of the August
2011 hearing, counsel for claimant and the employer jointly –
through a letter faxed by the employer's counsel to the ALJ at
the hearing site – requested an adjournment in light of the fact
that they had reached a tentative settlement.3 While we agree
with the Board that the granting of the adjournment should have
been verified before a decision was made not to appear at the
hearing, it is evident that all parties assumed in good faith


     2
        The ALJ determined that claimant had good cause for
failing to appear at the second and third hearings, and granted
claimant's applications to reopen those default decisions.
     3
        We note that the employer advises that it does not object
to claimant's receipt of unemployment benefits and has not
opposed the relief requested in the instant appeal.
                              -3-                  518365

that their appearance was not required, as neither claimant's
counsel nor the employer appeared for the hearing. Indeed, it is
questionable whether the hearing would have proceeded in their
absence even if claimant had appeared. In light of these
circumstances, we find that the August 2011 default decision
should have been reopened and, therefore, the decision is
reversed and the matter remitted for consideration on the merits
(compare Matter of Cedeno [Commissioner of Labor], 83 AD3d 1350,
1351 [2011]).

     Lahtinen, J.P., Stein, Garry, Rose and Devine, JJ., concur.



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
