                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 2, 2014                   518448
________________________________

In the Matter of the Claim of
   ROSE CHERI J. BOWE,
                    Appellant.

SOUTHERN TIER HOME BUILDERS
   ASSOCIATION,                             MEMORANDUM AND ORDER
                    Respondent.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Stein, J.P., McCarthy, Rose, Egan Jr. and Lynch, JJ.

                             __________


      Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Shepard
of counsel), for appellant.

      Coughlin & Gerhart, LLP, Binghamton (Joseph J. Steflik of
counsel), for Southern Tier Home Builders Association,
respondent.

      Eric T. Schneiderman, Attorney General, New York City (Dawn
A. Foshee of counsel), for Commissioner of Labor, respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed May 8, 2013, which, among other things, denied
claimant's application to reopen a prior decision.

      Claimant, who worked as the executive officer for the
employer for approximately four years, had her employment
terminated in November 2009 after financial irregularities were
apparently discovered. She thereafter applied for unemployment
                              -2-                518448

insurance benefits and the Department of Labor issued an initial
determination that, among other things, disqualified claimant
from receiving benefits for having lost her employment due to
misconduct. Hearings were scheduled for June 2010 and November
2010, but claimant did not appear at either upon the advice of
her attorney due to a pending criminal investigation. In May
2012 or early June 2012, the investigation was completed and no
charges were filed against claimant. By correspondence dated
August 31, 2012, claimant applied to reopen her claim. Following
a hearing, an Administrative Law Judge denied the application to
reopen, finding that claimant did not demonstrate good cause to
reopen the default because she did not make her request in a
reasonable amount of time following the conclusion of the
criminal investigation. That determination was affirmed by the
Unemployment Insurance Appeal Board and claimant now appeals.

      We affirm. Pursuant to 12 NYCRR 461.8, a case may be
reopened following a default upon a showing of good cause if such
request is made within a reasonable time. The 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 Becker
[Commissioner of Labor], 108 AD3d 930, 931 [2013] [internal
quotation marks and citation omitted]). Here, claimant, who was
represented by counsel, explained only that she was out of state
for an unspecified period of time following her father's death in
April 2012 and that it therefore took a "few weeks" to work with
her attorney "to get things going again." Claimant contends that
the Board has determined, on occasion, that delays of similar
duration have been found to be "reasonable." Accepting this to
be true, it was for the Board to assess claimant's proffered
explanation with regard to whether the delay was reasonable under
the circumstances presented here (see Matter of Barto
[Commissioner of Labor], 110 AD3d 1418, 1419 [2013]; Matter of
Green [Village of Hempstead–Commissioner of Labor], 80 AD3d 954,
955 [2011]). Based upon our review of the record, we are unable
to conclude that the Board abused its discretion when it
determined that claimant failed to demonstrate good cause to
reopen the default decision.
                              -3-                  518448

      Stein, J.P., McCarthy, Rose, Egan Jr. and Lynch, JJ.,
concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
