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In re Claim of Burger

Supreme Court of New York, Third Department

September 26, 2013

In the Matter of the Claim of JAMES A. BURGER, Appellant. and COMMISSIONER OF LABOR, Respondent.

Calendar Date: July 29, 2013.

James A. Burger, Syracuse, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Dawn A. Foshee of counsel), for respondent.

Before: Stein, J.P., McCarthy, Garry and Egan Jr., JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 29, 2012, which, among other things, reduced claimant's benefit rate pursuant to Labor Law § 600 (7).

Claimant, a driver for a retail supermarket chain for over 30 years, was laid off in March 2010 and, thereafter, sought unemployment insurance benefits. Notably, when he applied for benefits, claimant duly informed the Department of Labor concerning his anticipated receipt of pension benefits, which he began to receive in June 2010 in the monthly amount of $2, 941, 66. Thereafter, claimant was given notice that, due to his fully employer-funded pension, his unemployment insurance benefits were reduced, pursuant to Labor Law § 600 (7), from $405 to zero per week, effective May 31, 2010, and he was charged with a recoverable overpayment of regular and federal additional compensation benefits in the total amount of $2, 150. Following various proceedings, the Unemployment Insurance Appeal Board ultimately ruled that claimant's benefits were properly reduced based upon his pension income and, further, that the funds he received following the effective date of the reduction in his benefit rate were recoverable. This appeal ensued.

We affirm. "Substantial evidence supports the finding that claimant's former employer[] fully funded his pension, 'thereby triggering the statutory reduction in benefit payments'" (Matter of Babcock [Commissioner of Labor], 106 A.D.3d 1316, 1316 [2013], quoting Matter of Johnson [Commissioner of Labor], 256 A.D.2d 804, 805 [1998], lv denied 93 N.Y.2d 803 [1999]; see Matter of Sanchez [Commissioner of Labor], 56 A.D.3d 846, 847 [2008]). Moreover, while it is undisputed that claimant properly disclosed his pension eligibility, he was, nevertheless, not entitled to receive benefits during the applicable period and, therefore, was subject to being charged with a recoverable overpayment despite the absence of fault on his part (see Matter of Sanchez [Commissioner of Labor], 56 A.D.3d at 847).

Stein, J.P., McCarthy, Garry and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.


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