In re the Claim of Marshall ( 1983 )

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 28, 1980, which affirmed an administrative law judge’s decision overruling an initial determination of the Commissioner of Labor disqualifying claimant from receiving benefits because she lost her employment due to misconduct. The pertinent facts are set forth in this court’s prior decision in this matter (Matter of Marshall [Proctor & Gamble Mfg. Co. —Ross], 83 AD2d 667). In that decision we withheld determination of this appeal to allow the employer or Commissioner of Labor to apply to the board to have the case reopened (Labor Law, § 534) for the purpose of determining whether the Commissioner of Labor’s ruling of September 2, 1980, rendered the employer’s appeal to the board academic. Upon the employer’s application, the board granted a motion to reopen and, upon reopening, adhered to its original decision. It is undisputed that no benefits were ever paid on the instant claim and none can be paid even if claimant prevails on the issue raised in this appeal due to the fact that the Commissioner of Labor, on September 2, 1980, issued an unchallenged determination that the present claim was not a valid original claim (Labor Law, § 527). Accordingly, since the issue presented in this appeal is limited to its particular factual pattern and is unlikely to recur, the instant appeal should be dismissed as academic. Appeal dismissed, without costs, as academic. Mahoney, P. J., Kane, Casey, Mikoll and Levine, JJ., concur.