In re the Claim of Richman

254 A.D.2d 673, 679 N.Y.S.2d 197, 1998 N.Y. App. Div. LEXIS 11497

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 1998
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 11, 1997, which ruled that claimant was ineligible to receive unemployment insurance benefits because he failed to file a valid original claim.

Claimant, an attorney employed by the State Department of Economic Development, challenges a decision of the Unemployment Insurance Appeal Board finding him ineligible to receive benefits because he was employed in a major nontenured policymaking or advisory position within the meaning of Labor Law § 565 (2) (e). The record reveals that claimant regularly made policy recommendations at the request of the Executive Deputy Commissioner, developed negotiating strategies with the Governor’s Counsel’s office, aided the policy units and counsel’s offices of 22 State agencies in formulating their legislative initiatives, coordinated the submission of bills from economic development agencies for approval by the Governor’s Counsel’s office and assisted the Deputy Commissioner of Policy with coordinating the duties of the economic development subcabinet.

In our view, this proof provides a rational basis from which the Board could conclude that claimant held a major nontenured policymaking or advisory position and that he was therefore ineligible to receive benefits (see, Matter of Todaro [State Ins. Fund — Commissioner of Labor], 250 AD2d 1017; Matter of Malgieri [Sweeney], 219 AD2d 751). Although claimant testified that he neither engaged in policymaking nor acted in an advisory capacity, this presented a credibility issue for the Board to resolve (see, Matter of Franconeri [New York City Dept. of Personnel — Hudacs], 190 AD2d 970).

Cardona, P. J., Mercure, White, Peters and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.