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Gronowicz v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 19, 2009

IN THE MATTER OF THE CLAIM OF ANTHONY GRONOWICZ, 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: January 26, 2009

Before: Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 14, 2007, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Whether a claimant is totally unemployed presents a factual issue for the Unemployment Insurance Appeal Board to resolve, and its determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed (see Matter of Bernard [Commissioner of Labor], 53 AD3d 1006 [2008]; Matter of Chirico [Commissioner of Labor], 49 AD3d 1104, 1105 [2008]). Pursuant to two contracts collectively covering the period September 1, 2005 to August 31, 2006, claimant was employed as a full-time substitute assistant professor. Although claimant testified that spring semester courses ended on or about May 25, 2006 and that he did not teach any classes over the summer, he admitted that he was paid on an annual basis and, hence, continued to receive paychecks during the summer of 2006.

Nonetheless, when claimant applied for benefits, he answered "no" to a question regarding whether he was receiving a continuation of wages. Under such circumstances, substantial evidence supports the Board's finding that claimant was not totally unemployed (see Matter of Summers [New York City Bd. of Educ. Commissioner of Labor], 21 AD3d 669, 671 [2005]; Matter of Wolfson [Ross], 57 AD2d 10, 11 [1977]), as well as its imposition of a recoverable overpayment (see Matter of Bianco [Commissioner of Labor], 53 AD3d 1002, 1003 [2008], lv denied 11 NY3d 711 [2008]).

Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090219

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