In re the Claim of Kaminski

233 A.D.2d 737, 650 N.Y.S.2d 1015, 1996 N.Y. App. Div. LEXIS 12062

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1996
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 12, 1996, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits for a period of time because she was not able to work.

Fired from her teaching position on November 4,1994, claimant applied for, and collected, unemployment insurance benefits for the period November 7, 1994 through January 8, 1995. On December 5, 1994, claimant applied for disability benefits on the ground that she was disabled due to difficulties with her pregnancy. The Board found that claimant was ineligible to receive unemployment insurance benefits from December 5, 1994 through January 8, 1995 based on her incapability to perform work and charged her with a recoverable overpayment. On appeal, claimant contends that she was fully capable of working, and actively sought employment, up until January 8, 1995, at which time claimant concedes that she was incapable of working.

In light of the averments of claimant and her physician on the application for disability benefits that claimant was unable to work as of December 5, 1994 because of medical problems associated with her pregnancy, as well as similar statements made by this physician in a letter dated October 10, 1995, we find that the Board’s decision is supported by substantial evidence (see, e.g., Matter of Katz [Levine], 51 AD2d 613). Moreover, although claimant testified that she was able to work up until January 8, 1995 and submitted documentary evidence to support this claim, this conflicting evidence merely presented a question of credibility for the Board to resolve (see, supra).

Mikoll, J. P., Mercure, Casey, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.