In re the Claim of McCarthy

82 A.D.2d 1014, 442 N.Y.S.2d 153, 1981 N.Y. App. Div. LEXIS 14750

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 1981
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 29, 1980, which reversed the decision of an Administrative Law Judge overruling initial determinations of the Industrial Commissioner disqualifying claimant from receiving benefits because he refused employment without good cause and charging him with an overpayment of benefits ruled to be recoverable. Since the former employer’s representatives testified that claimant flatly rejected available temporary full-time employment in the same capacity because he was only interested in securing appointment on a permanent basis, there is ample evidentiary support for the board’s conclusion that he refused employment without good cause. However, the additional determination that all subsequent benefit payments were recoverable cannot be upheld. The board found “In claiming benefits for the statutory week ending April 6, 1980, the claimant certified that he had informed the local office of all job offers [but he] did not disclose the job offer of-April 1”. At the hearing, claimant testified he did not recall being asked whether he had refused employment, and a representative of the Industrial Commissioner stated he did not have a questionnaire that might disprove claimant’s assertion. Thus, the record is devoid of evidence from which an inference of a failure to disclose a job offer could reasonably be drawn. We further note there would be no valid ground for recovering benefits prior to mid-April, the time scheduled for actual commencement of the proffered employment (cf. Labor Law, §597, subd 4). Decision modified, by reversing so much thereof as ruled benefits paid to claimant to be recoverable, and, as so modified, affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Weiss and Herlihy, JJ., concur.