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Diaz v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 11, 2008

IN THE MATTER OF THE CLAIM OF SONIA DIAZ, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 27, 2008

Before: Mercure, J.P., Spain, Rose, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 10, 2008, which, among other things, charged claimant with a recoverable overpayment of unemployment insurance benefits.

Substantial evidence supports the Unemployment Insurance Appeal Board's finding that claimant made willful misrepresentations to obtain unemployment insurance benefits, thereby justifying the imposition of a recoverable overpayment and forfeiture of future benefits (see Matter of Sexton [Commissioner of Labor], 51 AD3d 1312, 1312 [2008]), notwithstanding claimant's contention that the misrepresentations were not knowingly made (see Matter of McBurney [Commissioner of Labor], 46 AD3d 1308 [2007]; Matter of Piccirilli [Roberts], 92 AD2d 686 [1983]). Specifically, the record reveals that, during the benefits period when claimant repeatedly certified that she was not employed or self-employed, she was engaged in start-up activities for a home daycare business, including acquiring a business certificate and tax identification number, registering with the Office of Children and Family Services, taking appropriate training and classes, purchasing business supplies and advertising for the business (see Matter of Raspallo [Commissioner of Labor], 10 AD3d 751, 751-752 [2004]). Accordingly, the Board's decision is affirmed.

Mercure, J.P., Spain, Rose, Malone Jr. and Stein, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20081211

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