                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 18, 2014                   518450
________________________________

In the Matter of the Claim of
   RUBEN ABREU,
                    Appellant.

E. ARMATA, INC.,                            MEMORANDUM AND ORDER
                    Respondent.

COMMISSIONER OF LABOR,
                    Respondent.
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Calendar Date:   August 4, 2014

Before:   Stein, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


     Ruben Abreu, Mamaroneck, appellant pro se.

      Frumkin & Hunter, LLP, White Plains (William Frumkin of
counsel), for E. Armata, Inc., respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed October 28, 2013, which denied claimant's
application for reopening and reconsideration of a prior
decision.

      Claimant, a driver who delivered wholesale produce, was
discharged by the employer after evidence suggested that he had
stolen 40 boxes of tomatoes by delivering them to the wrong
address. The employer challenged the initial determination of
the Department of Labor that claimant was entitled to
unemployment insurance benefits and, following a hearing at which
claimant did not appear, the Administrative Law Judge found that
claimant had lost his employment due to disqualifying misconduct
and was ineligible for benefits. The Administrative Law Judge
                              -2-                  518450

refused to reopen the hearing upon claimant's application, and
the Unemployment Insurance Appeal Board affirmed. Claimant then
moved for the Board to reopen and reconsider its decision, and he
now appeals from the denial of that motion.

      We affirm. Claimant argues that the Board erred in denying
his application for reopening and reconsideration, a decision
that "will not be disturbed absent a showing that the Board
abused its discretion" (Matter of Lambrecht [Commissioner of
Labor], 102 AD3d 1050, 1051 [2013]). Here, claimant premised his
motion upon "new evidence" that had, in fact, already been placed
before the Board. Suffice it to say, we perceive no abuse of
discretion in the Board's refusal to reconsider the matter under
these circumstances (see Matter of Higgins [Hudacs], 201 AD2d
810, 810 [1994]).

     Stein, J.P., Garry, Lynch, Devine and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
