State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 6, 2016 521553 

________________________________

In the Matter of the Claim of

IGOR OBERMAN, 

Appellant.

NEW YORK CITY DEPARTMENT OF

CITYWIDE ADMINISTRATIVE MEMORANDUM AND ORDER

SERVICES,

Respondent.

COMMISSIONER OF LABOR, 

Respondent.

________________________________

Calendar Date: September 16, 2016

Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.

__________

Igor Oberman, New York City, appellant pro se.

Zachary W. Carter, Corporation Counsel, New York City

(Susan Paulson of counsel), for New York City Department of

Citywide Administrative Services, respondent.

Eric T. Schneiderman, Attorney General, New York City (Gary

Leibowitz of counsel), for Commissioner of Labor, respondent.

__________

Aarons, J.

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed November 12, 2014, which ruled, among other things,

that claimant was disqualified from receiving unemployment

insurance benefits because his employment was terminated due to

misconduct.
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From June 2012 to September 2013, claimant was employed by

the New York City Taxi and Limousine Commission (hereinafter TLC)

as an executive agency managing attorney in TLC's consumer

complaints unit. While employed by TLC, claimant served as

president of the Board of Directors of a residential housing

cooperative and, in February 2013, registered with the New York

City Campaign Finance Board as a candidate for a seat on the City

Council. After receiving an anonymous complaint that claimant

was using TLC's resources to conduct his campaign for election to

the City Council, TLC requested the New York City Department of

Investigation (hereinafter DOI) to investigate claimant's

campaign-related activities during his employment. Thereafter,

claimant informed TLC that he would take a leave of absence from

his employment pursuant to a directive requiring claimant to do

so upon, among other things, publicly declaring his intent to

seek elected public office. Upon completing its investigation,

DOI concluded that claimant had misused TLC's resources prior to

taking a leave of absence, and, in September 2013, TLC terminated

claimant's employment, prompting claimant to apply for

unemployment insurance benefits, which he began to receive at a

weekly rate of $405. The Department of Labor subsequently

determined that claimant was disqualified from receiving benefits

because his employment was terminated for misconduct and found

that claimant had made a willful misrepresentation on his

application for benefits insofar as he claimed that he had been

discharged for lack of work. The Department charged claimant

with an overpayment of $4,050 in benefits, reduced his right to

receive future benefits by eight effective days and imposed a

civil penalty of $607.50. Ultimately, the Unemployment Insurance

Appeal Board upheld the Department's initial determination and

penalties imposed pursuant to that determination. Claimant now

appeals.

We affirm. "Whether a claimant has engaged in

disqualifying misconduct is a factual question for the Board to

resolve and its determination will not be disturbed if supported

by substantial evidence" (Matter of Chirico [City of Syracuse—

Commissioner of Labor], 136 AD3d 1137, 1138 [2016] [internal

quotation marks and citations omitted]; see Matter of Hector

[Commissioner of Labor], 128 AD3d 1258, 1259 [2015]). "'It is

well settled that failure to abide by a known policy of the
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employer can constitute disqualifying misconduct'" (Matter of

Smith [Commissioner of Labor], 138 AD3d 1341, 1342 [2016],

quoting Matter of Wise [Commissioner of Labor], 19 AD3d 795, 795

[2005] [citations omitted]; see Matter of Intini [Commissioner of

Labor], 123 AD3d 1347, 1349 [2014]). 

TLC's limited-use policy, of which claimant was aware,

permitted limited personal use of TLC's office and technology

resources as long as such use does not interfere with official

duties and responsibilities. The record evidence, including the

report detailing the findings of DOI's investigation,

establishes, however, that claimant's use of TLC's resources,

including his work computer and telephone, to further his

political campaign efforts and his work with the residential

housing cooperative was extensive. In particular, various

documents related to his work with his residential housing

cooperative, in addition to documents related, as well as scanned

checks payable, to claimant's campaign were found on his work

computer. In addition, of the 1,900 telephone calls that

claimant made at work between January and May 2013, approximately

only 25% of those calls were related to TLC's official business. 

Furthermore, of the telephone calls made that were unrelated to

claimant's employment, the record evidence adequately

demonstrates that the majority of those calls pertained to his

responsibilities as president and board member of his residential

housing cooperative, his campaign fund-raising efforts and his

solicitation and receipt of campaign contributions (see Matter of

Smith [Commissioner of Labor], 138 AD3d at 1342). Claimant

denied at the hearing that he used his work computer and

telephone at TLC to pursue his campaign efforts, to solicit

contributions for his campaign or to perform work for the

residential housing cooperative, but this presented issues of

credibility within the exclusive province of the Board (see

Matter of Thompson [St. Paul's Episcopal Church—Commissioner of

Labor], 134 AD3d 1274, 1275 [2015]; Matter of Andrews [A.C. Roman

& Assoc.—Commissioner of Labor], 118 AD3d 1216, 1217 [2014]),

which was entitled to credit the competing evidence presented at

the hearing and reject claimant's exculpatory claims. 

Furthermore, insofar as claimant inaccurately represented when

applying for benefits that he was unemployed due to a lack of

work when he had previously been made aware of DOI's
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investigation of him, we find no reason to disturb the Board's

imposition of a recoverable overpayment or forfeiture penalty

based upon his willful misrepresentations (see Labor Law § 594

[4]; Matter of Sarson [Commissioner of Labor], 138 AD3d 1327,

1327 [2016]; Matter of Campon [Commissioner of Labor], 122 AD3d

1228, 1229 [2014]; Matter of Guess [Commissioner of Labor], 119

AD3d 1256, 1257 [2014]). 

Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court