SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 17, 1968
IN THE MATTER OF THE CLAIM OF DAVID SCHWALBE, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.
Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board, filed December 15, 1967, disqualifying claimant from unemployment insurance benefits and imposing a forfeiture of 20 effective day. After being employed for three weeks, claimant voluntarily left his employment because he felt unqualified to perform his assigned duties despite the employer's request to stay on. A few days following his severance, claimant filed for benefits and on the application form in response to the question of why he lost his job, he wrote "Job Terminated". The board has found that this response was intended "to convey the impression that claimant's employment came to an end for reasons other than his leaving the job of his own accord", constituting a willful misrepresentation. Whether in a given case a statement is false and made with the element of scienter and knowledge of falsity is a question of fact and within the sole province of the board to determine if supported by substantial evidence. (Matter of Goldwag [ Catherwood ], 28 A.D.2d 761.) The record establishes the presence of the required substantial evidence and is supportive of the board's determination.
Decision affirmed, without costs.
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