In re the Claim of Piro

Appeal from decisions of the Unemployment Insurance Appeal Board, filed September 17, 1979. By initial determinations, claimant was disqualified from receiving benefits effective October 11, 1977, because he voluntarily left his employment to follow his spouse to another locality and ruled ineligible to receive benefits effective October 17, 1977 because he was not totally unemployed and because he was not available for employment. Following a hearing, a referee sustained the initial determination disqualifying claimant on the ground that he voluntarily left his employment to follow his spouse to another locality. The referee did not rule on the two remaining determinations. The referee’s decision was affirmed by the board in a decision filed September 8, 1978. Claimant appealed to this court and the case was placed on the calendar for the May, 1979 term. By letter dated May 2, 1979, the Attorney-General requested that the case be removed from the May Term Calendar on the basis that the Industrial Commissioner was applying to the board for rescission of its determination and such application would render claimant’s appeal academic. This request was granted over claimant’s objection. By letter dated May 3, 1979, the commissioner requested the board to reopen and rescind its decision filed September 8, 1978, and also requested that the board rule on the issues of claimant’s total unemployment and availability for employment. In a decision filed June 21, 1979, the board, on its own motion, reopened for reconsideration its decision filed September 8, 1978, rescinded that decision and sustained the initial determination holding claimant ineligible to receive benefits effective October 17, 1977, on the 941 ground he was not available for employment. The initial determination disqualifying claimant from receiving benefits because he voluntarily left his employment to follow his spouse to another locality was withdrawn in accordance with the Industrial Commissioner’s request. The board, in a decision filed September 17, 1979, granted claimant’s application to reopen its decision filed June 21, 1979, revised its decision to find that claimant reported 26 job efforts in the five-month period following October 17, 1977 and, as so revised, adhered to its prior decision. The issue on this appeal concerns the propriety of the board’s determination to reopen for reconsideration its decision filed September 8, 1978. Any power of the board to reopen a prior decision is limited by the bounds of discretion. This court has previously stated that where "the purpose of reconsideration is to cure a defect which is brought to the board’s attention by a point raised in appellant’s brief * * * it appears unfair to permit the board to nullify a valid argument which might have compelled a reversal for appellant” (Matter of Olan [Ross], 60 AD2d 113, 115). In Matter of Baccus (Ross) (64 AD2d 805), we again denounced this practice by the board. In Baccus, however, the decision of the board upon reconsideration was more favorable to claimant than the board’s prior decision. Here the case was removed from this court’s calendar just weeks before scheduled oral argument. The board subsequently rescinded its decision filed September 8, 1978, only to deny benefits to claimant on another ground, which it failed to pass upon originally. It has now rendered three decisions in this case, yet has not ruled on the issue of claimant’s total unemployment, despite the commissioner’s request that it do so. This procedure results in increased cost and delay to claimants, and contravenes the primary purpose of the unemployment insurance law—to ease the hardship of unemployment (Matter of Aquilina [New York Tel. Co.—Ross], 62 AD2d 1096). It also is not consonant with "the speedy administration of justice” referred to as an interest to be promoted in the board’s own regulations concerning the appeal process (see 12 NYCRR 463.2 [c]). Upon consideration of the entire record, we are of the opinion that in the present case the board abused its discretion in reopening its decision of September 8, 1978. Accordingly, the board’s decision filed September 17, 1979, which adhered to its prior decision filed June 21, 1979 reopening its decision of September 8, 1978, must be reversed, as well as the decision filed June 21, 1979. As a result of these reversals, only the decision of September 8, 1978 remains for review. In light of respondent’s concession that this decision was in error, it too must be reversed. Decisions reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Sweeney, Kane, Staley, Jr., and Casey, JJ., concur.