In re the Claim of Piro

Mahoney, P. J., concurs in the following memorandum. Mahoney, P. J. (concurring).

By decision filed June 21, 1979, the board rescinded its prior decision of September 8, 1978 which had denied claimant benefits on the ground that he voluntarily left his employment without good cause. The June 21 decision reopened the matter for reconsideration and denied claimant benefits on a ground initially advanced by the Industrial Commissioner and not reached by either the referee or the board, i.e., that claimant was unavailable for employment. Claimant did not appeal this June 21 decision of the board. Rather, by application dated June 27, 1979, claimant requested the board to reopen its decision of June 21, 1979 on the basis of new evidence he wished to present. The board, in a decision filed September 17, 1979, granted the application to reopen and reconsider its June 21 decision, revised its factual findings, and adhered to its June 21 decision holding *942claimant ineligible to receive benefits because he was not available for employment. It is from this September 17, 1979 board decision that claimant appeals. Since a decision by the board to adhere to its initial position after an application to reopen is granted has the effect of a new decision, this appeal properly presents for our review the merits of the board’s June 21 decision (Matter of De Siato [Ross], 74 AD2d 988; see Matter of Rinaldi [General Off. Serv. Bur.—Corsi], 281 App Div 1051). I agree with the majority’s conclusion that the board abused its discretion in deciding to rescind its September 8, 1978 decision. The practical effect of such a holding would be to force the referee and the board to pass upon multiple grounds for disqualification in all those cases where the Industrial Commissioner advanced alternative grounds for denying benefits to a claimant. Failure by the board to address all of the grounds raised would result in a waiver of those grounds not considered. The Industrial Commissioner argues that such a policy would severely burden the administrative process. I do not agree. When a hearing is held before a referee, proof is introduced on all of the grounds for disqualification raised by the commissioner, who has no way of predicting on which ground the referee’s decision will be based. Once the record is complete, it is reviewed by the referee before a decision is made. I see no reason why it would be unduly burdensome to require the referee, and later the board, to initially rule on all of the grounds they feel support a determination denying benefits, especially when this effort is balanced against the time and money saved by claimants who will not be faced with the possibility of having to contest each ground advanced for denying benefits on separate trips through the administrative and appellate process. Claimants who have had their claims for benefits resolved by a decision of the board should be able to attribute a certain degree of finality to such decisions. While the board may have continuing jurisdiction to review its own decisions (Labor Law, § 534), it does not have authority to fragmentize the decision-making process for the sake of its own administrative convenience to the prejudice of a party’s right to a speedy and final determination of a claim for benefits, whether before the appeal board or this court. Since the board abused its discretion and acted arbitrarily when it rescinded its September 8, 1978 decision, the June 21, 1979 board decision must be reversed. As noted by the majority, the Industrial Commissioner has conceded that the September 8, 1978 decision was erroneous and, accordingly, this matter should be remitted to the board so that it may determine the amount of benefits due claimant.