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eBook details

• Title: Matter Claim David Czarniak
• Author : Supreme Court of New York
• Release Date : January 29, 1977
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

[60 A.D.2d 745 Page 745] Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 28, 1976, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner holding claimant ineligible to receive benefits effective December 24, 1974 because he was not totally unemployed and was unavailable for employment; charged him with an overpayment of benefits ruled to be recoverable; and held he had willfully made false statements to obtain benefits by reason of which a forfeiture of 144 effective days was imposed. Claimant, a plumber, filed for and began to receive unemployment insurance benefits in July of 1974 under qualifying conditions. In December of that year he and another individual formed a corporation for the retail sale of plumbing equipment and supplies. Claimant invested in the enterprise and became its president. He thereafter assisted in the leasing of suitable office space, the purchase of inventory, and the payment of utility bills. The venture was formally opened for business in May of 1975 and claimant, then employed elsewhere, sought no further benefits. From his own account there is more than substantial evidence to support the finding that his preparatory efforts during this interval, though not remunerative, removed him from the category of the totally unemployed (see, e.g., Matter of Scheer [Catherwood], 33 A.D.2d 1063). The determination of ineligibility must, therefore, be affirmed. However, the recovery of overpayments and the reduction of effective days is made to hinge on a finding of willful misrepresentation to obtain benefits and we conclude that the evidence in this regard was insufficient. Claimant was not engaged in corporate affairs when he first applied for benefits and the record does not reveal what instructions he received at that time about the necessity of reporting future employment activities. Although he was under a continuing obligation to disclose such endeavors, this is plainly not the usual situation where one's failure to mention his work for another speaks for itself as an indication of willful misrepresentation (see e.g., Matter of Hare [Catherwood], 20 A.D.2d 733). The marking of an N in a weekly benefit booklet means that a [60 A.D.2d 745 Page 746]

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