                          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Board, filed May 8, 2013, as superceded by decision filed October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
                              -2-                518506

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.
                              -3-                518506

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.
                        -4-                  518506

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
