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MATTER CLAIM ISAAC MARCHENA (01/13/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


January 13, 1969

IN THE MATTER OF THE CLAIM OF ISAAC MARCHENA, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT

Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by the court.

Memorandum by the Court. Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 24, 1968, which determined that claimant was ineligible to receive benefits effective December 2, 1966, and from December 5, 1966 through December 12, 1966, on the ground that he was not totally unemployed, charging him with an overpayment of $53.75 in benefits ruled to be recoverable, and holding that claimant willfully made false statements to obtain benefits for which a forfeiture of 48 effective days was imposed. Claimant, a hairdresser, certified to total unemployment in the weeks ending December 4 and December 11, 1966 and testified that he commenced work on December 12, 1966. The president of his employer testified that he tried out for the job on December 2, 1966 and was paid for that day and commenced work on December 5, 1966. The board rejected claimant's testimony and accepted the testimony of his employer's president. Although the claimant contends there are inaccuracies in the testimony of his employer's president, the issue of credibility and the determination of the question of fact as to the date claimant commenced work are within the exclusive province of the board. (Matter of Ianitzky [Catherwood ], 24 A.D.2d 1043; Matter of Perry [Catherwood ], 24 A.D.2d 921; Matter of Ilibassi [Catherwood ], 27 A.D.2d 673.) Since there is substantial evidence in the record to support the determination of the board, we will not disturb its determination.

Disposition

Decision affirmed, without costs.

19690113

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