In re the Claim of Zinn

52 A.D.2d 707, 382 N.Y.S.2d 591, 1976 N.Y. App. Div. LEXIS 12387

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1976
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 20, 1975, which affirmed a decision of a referee holding the claimant ineligible to receive benefits during the period from September 16, 1974 through February 3, 1975 because he was not totally unemployed, charging claimant with an overpayment ruled to be recoverable, and holding that claimant willfully made false statements to obtain benefits by reason of which a forfeiture was imposed as a penalty in reduction of his future benefit rights. The conflicting versions as to the date upon which claimant was to commence work under the hiring arrangement, testified to by the employer and the claimant, presented for determination by the board the question of whether or not claimant was totally unemployed. This is a factual determination and, if the board’s decision is supported by substantial evidence, it cannot be disturbed (Matter of Pal [Levine], 50 AD2d 1001; Matter of Schatzberg [Catherwood], 32 AD2d 710). Claimant’s own testimony that he called customers during the period in issue and received money from the employer, together with other testimony, enabled the board to properly find that the claimant was actually employed. The question of whether or not a misrepresentation is willful is also a factual issue for the board, and where, as here, its decision is supported by substantial evidence, it must be afiirmed (Matter of Lach [Catherwood], 31 AD2d 663). Decision afiirmed, without costs. Kane, J. P., Mahoney, Main, Larkin and Herlihy, JJ., concur.