SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 17, 1968
IN THE MATTER OF THE CLAIM OF MAX LANG, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.
Appeal by the claimant from the decision of the Unemployment Insurance Appeal Board holding claimant ineligible to receive benefits effective July 4, 1966 through July 31, 1966 on the ground that he was not totally unemployed (Labor Law, § 522), charging him with an over payment of $112.50 ruled to be recoverable and holding that claimant willfully made false statements to obtain benefits for which a forfeiture of 96 effective days was imposed (Labor Law, § 594). In each week in July of 1966 claimant admittedly worked at least four days a week as a doorman for the employer at its theatre on a part-time basis and yet reported only that he worked three days during the statutory week ending July 10, 1966 and one day per week for the remaining three weeks involved. Of course, claimant was not entitled to benefits (Labor Law, §§ 522, 523) and the benefits paid were clearly recoverable. Moreover, whether the necessary, "element of scienter and knowledge of falsity" is present in a given case is factual and therefore for the board to determine (Matter of Bailey [ Catherwood ], 18 A.D.2d 727, 728). On the instant record we can find no basis to disturb the board's determination and, accordingly, it must be affirmed (Matter of Soroka [ Catherwood ], 24 A.D.2d 920).
Decision affirmed, without costs.
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