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In the Matter of the Claim of

State of New York Supreme Court, Appellate Division Third Judicial Department


May 16, 2013

IN THE MATTER OF THE CLAIM OF HAROLD J. BABCOCK, APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 7, 2011, which, among other things, charged claimant with a recoverable overpayment of emergency unemployment compensation benefits.

MEMORANDUM AND ORDER

Calendar Date: April 3, 2013

Before: Stein, J.P., Spain, McCarthy and Garry, JJ.

The Unemployment Insurance Appeal Board ruled that Labor Law § 600 (7) required a reduction in claimant's benefit rate following his receipt of payments from his union pension. Claimant was further charged with a recoverable overpayment of $8,439 in federally funded emergency unemployment compensation benefits, and the Board rejected his application for a waiver of repayment (see Pub L 110-252, tit IV, § 4001 et seq., 122 US Stat 2323; Matter of Umpierre [Commissioner of Labor], 80 AD3d 1123, 1123 [2011]). Substantial evidence supports the finding that claimant's former employers fully funded his pension, "thereby triggering the statutory reduction in benefit payments" (Matter of Johnson [Commissioner of Labor], 256 AD2d 804, 805 [1998], lv denied 93 NY2d 803 [1999]; see Labor Law § 600 [7]; Matter of Sanchez [Commissioner of Labor], 56 AD3d 846, 847 [2008]). Inasmuch as claimant's monthly income significantly exceeded his expenses, substantial evidence further supports the Board's determination "that a waiver of repayment was not called for as a matter of equity or good conscience" (Matter of Silver [Commissioner of Labor], 84 AD3d 1634, 1635 [2011]).

Stein, J.P., Spain, McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20130516

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