| Matter of Baiju (Commissioner of Labor) |
| 2010 NY Slip Op 09449 [79 AD3d 1512] |
| December 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Bishnu S. Baiju, Appellant. Commissioner ofLabor, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Marjorie S. Leff of counsel), forrespondent.
Stein, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 27,2010, which, upon reconsideration, among other things, adhered to its prior decision ruling that claimantwas ineligible to receive unemployment insurance benefits because he was not available foremployment.
Claimant, a foreign national, was employed as a finance manager for the employer under an H-1Bvisa until he separated from employment in 2008. In July 2008, claimant first applied for unemploymentinsurance benefits. Following a hearing, an Administrative Law Judge (hereinafter ALJ) determined thatclaimant had separated from employment under nondisqualifying circumstances and was available forwork because his work visa was effective until May 5, 2011. Pursuant to that decision, claimantreceived unemployment insurance benefits from July 2008 until February 2009. In March 2009,claimant again submitted a claim for unemployment insurance benefits. In response, the Department ofLabor issued an initial determination finding that claimant was not available for work dating back to July2008 and assessing him with a recoverable overpayment of emergency unemployment insurancebenefits in the amount of $3,645. Ultimately, the Unemployment Insurance Appeal Board affirmed thatdetermination and, after reconsideration, adhered to its decision. Claimant now appeals.
We reverse. It is well settled that "[a] decision of an administrative agency which neither adheres toits own prior precedent nor indicates its reason for reaching a different result [*2]on essentially the same facts is arbitrary and capricious" (Matter ofCharles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 517 [1985]; see Matter of Catapano v Jaw, Inc., 73AD3d 1361, 1362 [2010]; Matter ofHuff v Department of Corrections, 52 AD3d 1003, 1004 [2008]). Here, an ALJ issued adetermination in July 2008 finding that claimant did not separate from employment under disqualifyingcircumstances and, further, that he was available for work because his visa was effective until May2011. The record contains no indication that the July 2008 determination was ever appealed and, infact, claimant received benefits pursuant to that decision from July 2008 to February 2009. As such,that determination was "deemed" the decision of the Board from the date of filing (see LaborLaw § 620; Matter of Bull [Yansick Lbr. Co.—Sweeney], 235 AD2d 722, 724[1997], lv dismissed 90 NY2d 913 [1997]; Matter of Schimmel [Roberts], 101 AD2d681, 681 [1984]). Following a subsequent claim and further proceedings before a different ALJ, theBoard found that claimant was not available for work, despite the continued existence of a valid workvisa, and nullified claimant's right to receive benefits for the period for which he had already beenawarded benefits. Significantly, the Board provided no explanation for departing from its previousdetermination in the matter. Therefore, its decision must be reversed and the matter remitted to theBoard (see Matter of Catapano v Jaw, Inc., 73 AD3d at 1362; Matter of Huff vDepartment of Corrections, 52 AD3d at 1004).
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the decision is reversed,without costs, and matter remitted to the Unemployment Insurance Appeal Board for furtherproceedings not inconsistent with this Court's decision.