In the Matter of the Claim of STEPHEN M. DENES, Appellant. COMMISSIONER OF LABOR, Respondent.
Calendar Date: November 29, 2016
Stephen M. Denes, Sugar Loaf, appellant pro se.
T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for respondent.
Before: Peters, P.J., Garry, Lynch, Devine and Mulvey, JJ.
MEMORANDUM AND ORDER
(1) from a decision of the Unemployment Insurance Appeal
Board, filed September 25, 2015, which ruled, among other
things, that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed, and
(2) from a decision of said Board, filed January 15, 2016,
which denied claimant's application for reopening and
was appointed to a seven-year term as a member of the Town of
Chester Planning Board on March 1, 2011 and, in that
capacity, attended eight bimonthly meetings between October
17, 2012 and May 1, 2013. His duties included reviewing
matters pending before the Planning Board, which required
meeting with and questioning developers, engineers and
homeowners at meetings. Claimant submitted a job application
and employment eligibility verification and tax withholding
forms, and the Town paid him an annual salary of $3, 253 at
the end of 2012 and $3, 350.99 at the end of 2013 and issued
W-2 tax forms. Claimant applied for unemployment insurance
benefits on October 12, 2012 and thereafter certified eight
times, until May 5, 2013, that he did not work during the
relevant period although he had attended Planning Board
meetings as a member. The Department of Labor issued an
initial determination that found claimant ineligible to
receive unemployment insurance benefits, effective October
12, 2012 until May 5, 2013, because he was not totally
unemployed on the dates when he participated in Planning
Board meetings. That determination charged claimant with
overpayments of $810 in benefits and reduced his right to
receive future benefits by 60 days, and imposed a penalty of
$121.50 based upon his willful representations to obtain
benefits. Following a hearing, an Administrative Law Judge
sustained the initial determination and the Unemployment
Insurance Appeal Board (hereinafter the Board) affirmed,
finding that claimant was not totally unemployed on the dates
he performed services at Planning Board meetings. The Board
thereafter denied claimant's request for reopening and
reconsideration, and he now appeals from both decisions.
affirm. Eligibility for unemployment insurance benefits is
limited to claimants who are "totally unemployed"
(Labor Law § 591 ), defined as "the total lack
of any employment on any day" (Labor Law § 522).
This presents a factual question for the Board to resolve and
its determination will be upheld if supported by substantial
evidence (see Matter of Roberson [Commissioner of
Labor], 142 A.D.3d 1259, 1260 ). Here, claimant
did not dispute that, while receiving unemployment insurance
benefits, he attended Planning Board meetings on the dates in
issue in his capacity as an appointed member, and that he
received compensation for that position. Thus, substantial
evidence supports the Board's decision that he was not
totally unemployed on those days and was, therefore,
ineligible to receive unemployment insurance benefits
(see id.) . Contrary to claimant's arguments,
the unemployment insurance handbook, which was available to
him, clearly advised that "[y]ou are considered employed
on any day when you perform any services-even an hour or
less" and that "[a]ny activity that brings in or
may bring in income at any time must be reported." Thus,
the factors that claimant relies upon, including that this
was not his primary occupation and that he was not paid based
upon attendance at each meeting, are irrelevant to the
question of total unemployment.
evidence also supports the Board's factual determination
that claimant made willful representations and false
statements to obtain benefits when he certified for benefits,
attesting that he had performed no work on days when he had
provided services as a member of the Planning Board,
permitting recoverable overpayments, forfeiture and a civil
monetary penalty  (see Labor Law § 594;
Matter of Kachmarik [Commissioner of Labor], 138
A.D.3d 1332, 1333-1334 ). Pursuant to the handbook,
parts of which claimant admitted reading and all of which was
available to him, notice was given that "any
activity" that brings in income and "all" work
performed must be reported, regardless of whether or not it
is for a primary occupation, involves supervisory
responsibilities, is part time or is compensated per diem or
by a small stipend. Thus, the record supports the inference
and finding of willfulness. The imposition of a forfeiture
penalty was also authorized and we decline to disturb it
(see Labor Law § 594 ; Matter of McCann
[Commissioner of Labor], 143 A.D.3d 1033, 1035 ).
Claimant's remaining contentions, to the extent that they
are preserved for our review, similarly lack merit.
Peters, P.J., Garry, Lynch, Devine and Mulvey, JJ., concur.
that the decisions are affirmed, without costs.
 While claimant's position on the
Planning Board may be "policymaking or advisory"
and, thus, not qualify as employment for purposes of filing a
valid original claim and obtaining unemployment insurance
benefits (see Labor Law § 565  [f]), this
remunerated position nonetheless is relevant to the issue of
whether claimant is "totally unemployed" while
certifying for benefits based upon former employment (Labor
Law § 591 ).
 The amendment to Labor Law § 594 (4)
authorizing a civil penalty for willful misrepresentations is
applicable to the initial determination here made on April
2015, as the Legislature provided that the amendment would
apply to "overpayments established after October 1,