State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 5, 2015 519337 

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In the Matter of the Claim of

TAMMY ROBINSON,

Appellant.

MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,

Respondent.

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Calendar Date: December 2, 2014

Before: Lahtinen, J.P., Rose, Egan Jr. and Lynch, JJ.

__________

Tammy Robinson, Schenectady, appellant pro se.

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

Leibowitz of counsel), for respondent.

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Appeal from a decision of the Unemployment Insurance Appeal

Board, filed June 16, 2014, which, among other things, ruled that

claimant was ineligible to receive unemployment insurance

benefits because she was not totally unemployed.

Claimant, a licensed practical nurse, was contracted by a

nurse staffing agency to work part time at the Albany County

Nursing Home on various dates between August 2011 and April 2012. 

She certified for and received unemployment insurance benefits

during this time period. Thereafter, the Department of Labor

issued initial determinations finding that claimant was

ineligible to receive benefits for certain weeks because she was

not totally unemployed and/or had received earnings in excess of

the statutory maximum. It also charged her with recoverable

overpayments of benefits and imposed forfeiture penalties based

upon a finding that she made willful misrepresentations to obtain

benefits. Claimant challenged these determinations, but only
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disputed the days worked and/or wages earned during the weeks

ending October 30, 2011, November 6, 2011, January 29, 2012,

February 12, 2012, March 25, 2012, April 1, 2012 and April 8,

2012. Following a hearing, an Administrative Law Judge modified

the determinations of ineligibility with respect to four of the

weeks within the subject time period – none of which were

challenged by claimant – and remitted the matter for a

recalculation of the recoverable overpayments and civil

penalties, but otherwise sustained the determinations, including

the finding of willful misrepresentation. The Unemployment

Insurance Appeal Board affirmed this decision and claimant now

appeals.

Initially, whether a claimant is totally unemployed for

purposes of receiving unemployment insurance benefits is a

factual question for the Board and its determination will be

upheld if supported by substantial evidence (see Matter of Nebel

[Commissioner of Labor], 108 AD3d 1007, 1008 [2013]; Matter of

Ramdhani [Commissioner of Labor], 98 AD3d 1183, 1184 [2012]). 

Notably, claimants performing part-time work who have worked four

or more days per week or who have earned more than $405 per week

regardless of the number of days worked have been deemed not to

be totally unemployed and, therefore, ineligible to receive

benefits for those weeks (see Matter of Nebel [Commissioner of

Labor], 108 AD3d at 1008; Matter of Gullotti [Commissioner of

Labor], 107 AD3d 1220, 1221 [2013]; Matter of Monserrate

[Commissioner of Labor], 102 AD3d 1046, 1047 [2013]; see also

Labor Law §§ 522, 523). 

Here, the certification records reveal that claimant

represented that she did not work any days during the weeks

ending October 30, 2011, November 6, 2011, January 29, 2012,

February 12, 2012, April 1, 2012 and April 8, 2012, and only two

days during the week ending March 25, 2012. However, the payroll

records and related documentation admitted at the hearing

establish that claimant worked three days during the weeks ending

October 30, 2011, November 6, 2011, January 29, 2012, March 25,

2012 and April 1, 2012, and five days during the weeks ending

February 12, 2012 and April 8, 2012. In addition, such documents

disclose that for each of the weeks in question, claimant earned

more than $405 per week. Notwithstanding claimant's assertion to
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the contrary, we conclude that the Board properly considered this

documentation (see Matter of Umpierre [Commissioner of Labor], 60

AD3d 1182 [2009]) and that it provides substantial evidence

supporting the determination of ineligibility with respect to the

weeks in question (see Matter of Monserrate [Commissioner of

Labor], 102 AD3d at 1047; Matter of Ramdhani [Commissioner of

Labor], 98 AD3d at 1184). 

As for the Board's finding that claimant made willful

misrepresentations to obtain benefits, claimant admittedly

possessed an unemployment insurance handbook informing her that

she could not receive benefits for any weeks that she worked four

or more days or earned more than $405 per week. She nevertheless

certified for benefits during weeks when she did not meet the

required criteria. In view of this, substantial evidence also

supports the Board's finding in this regard (see Matter of Nebel

[Commissioner of Labor], 108 AD3d at 1008; Matter of Gullotti

[Commissioner of Labor], 107 AD3d at 1221-1222). We have

considered claimant's remaining contentions and find them to be

unavailing.

Lahtinen, J.P., Rose, Egan Jr. and Lynch, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court