State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 6, 2016 522336 

________________________________

In the Matter of the Claim of

SEAN P. McCANN, 

Appellant.

MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,

Respondent.

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Calendar Date: September 14, 2016

Before: McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

__________

Derek M. English, Hiscock Legal Aid Society, Syracuse, for

appellant.

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

Leibowitz of counsel), for respondent.

__________

McCarthy, J.P.

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed March 10, 2015, which, among other things,

reduced claimant's right to receive future unemployment insurance

benefits upon a finding that he made willful misrepresentations

to obtain benefits. 

In August 2013, claimant filed a claim for unemployment

insurance benefits, which he began to receive. Following his

subsequent arrest for burglary and petit larceny, claimant was

incarcerated from October 3, 2013 to October 7, 2013 and from

October 9, 2013 to November 21, 2013. While claimant was in

jail, five separate certifications for unemployment insurance

benefits were made on his behalf by telephone and the Internet,

and $1,113.75 in benefits were deposited to claimant's account. 
-2- 522336 

Thereafter, the Department of Labor issued revised determinations

finding claimant ineligible to receive unemployment insurance

benefits during the time that he was incarcerated because he was

not available to work and because he failed to personally certify

for his benefits. Finding that claimant had made a willful

misrepresentation to obtain benefits, the Department charged

claimant with a recoverable overpayment of $1,113.75, imposed a

civil penalty and reduced claimant's right to receive future

benefits by a total of 352 effective days for allowing someone

else to certify for benefits on his behalf on five separate

occasions. Ultimately, the Unemployment Insurance Appeal Board

sustained the Department's determinations in toto. Claimant now

appeals.

Initially, we note that "'the question of whether a

claimant ha[s] made a willful misrepresentation to obtain

benefits is a factual issue for the Board to resolve and will be

upheld if supported by substantial evidence'" (Matter of Deutsch

[Commissioner of Labor], 126 AD3d 1209, 1210 [2015], quoting

Matter of Masterpaul [Commissioner of Labor], 76 AD3d 729, 729

[2010] [citations omitted]). A "willful misrepresentation is a

false statement that is made knowingly, intentionally or

deliberately and does not require proof of criminal intent to

defraud" (Matter of Deutsch [Commissioner of Labor], 126 AD3d at

1210; see Matter of Barbera [Commissioner of Labor], 28 AD3d 973,

974-975 [2006]). A false statement made unintentionally or as a

result of confusion may suffice (see Matter of Kachmarik

[Commissioner of Labor], 138 AD3d at 1333; Matter of Smith

[Commissioner of Labor], 107 AD3d 1287, 1288 [2013]). 

"Furthermore, 'there is no valid defense to making a false

statement'" (Matter of Deutsch [Commissioner of Labor], 126 AD3d

at 1210, quoting Matter of Bernard [Commissioner of Labor], 53

AD3d 1006, 1006 [2008]). 

The record evidence establishes that, upon his

incarceration, claimant's paramour received his personal effects,

including his wallet and cell phone. At the hearing, claimant

testified that, after being released from jail on November 21,

2013, he learned at that time that his paramour, without his

knowledge or consent, had certified for unemployment insurance

benefits on October 6, 14, 20, 27 and November 11, 2013 by
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accessing the Internet through his cell phone that stored his

username and password. At a subsequent hearing, when claimant

was informed that his paramour had also used the telephone to

certify for benefits, claimant then explained for the first time

that he must have written down his username and password and

placed that information in his wallet that his paramour had in

her possession. To the extent that claimant provided

inconsistent testimony at the latter hearing, this created a

credibility issue for the Board to resolve (see Matter of

Kachmarik [Commissioner of Labor], 138 AD3d 1332, 1334 [2016];

Matter of McCann [Commissioner of Labor], 117 AD3d 1259, 1261

[2014]), and the Board was entitled to reject claimant's

exculpatory claim that he did not authorize his paramour to

certify for benefits on his behalf. Moreover, the Board properly

concluded that each of the five false certifications was a

separate offense because each certification representing that

claimant was available to work was a separate false statement

made to obtain additional benefits for a different time period

(see Labor Law § 594 [1]; 12 NYCRR 473.2 [a]; Matter of Shuman

[Commissioner of Labor], 135 AD3d 1284, 1284-1285 [2016]; Matter

of Kossarska-Goetz [Commissioner of Labor], 111 AD3d 1240, 1241

[2013]; Department of Labor, Unemployment Insurance Division,

Adjudication Service Office, Standards for the Imposition of

Wilful Misrepresentation Penalties, Special Bulletin A-710-21

[Revised] [Feb. 17, 1982], https://www.labor.ny.gov/ui/aso/a710.

htm#71021). Accordingly, we see no reason to disturb the Board's

finding that claimant made willful misrepresentations to obtain

benefits (compare Matter of Hart [Commissioner of Labor], 125

AD3d 1021, 1022 [2015]). 

Finally, contrary to claimant's contention that the Board's

reduction of claimant's right to receive future benefits was

excessive or improper, we find that, inasmuch as the Board was

entitled to impose a forfeiture penalty of no more than 80 days

for "each such offense" or false statement, the cumulative

reduction of the right to future benefits for the five false

certifications was within that statutory range and will not be

disturbed (see Labor Law § 594 [1]; see also Department of Labor,

Unemployment Insurance Division, Adjudication Service Office,

Standards for the Imposition of Wilful Misrepresentation

Penalties, Special Bulletin A-710-21 [Revised], at I [C]; IV
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[Feb. 17, 1982], https://www.labor.ny.gov/ui/aso/a710.htm#71021). 

Lynch, Rose, Devine and Mulvey, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court