In re the Claim of Mazurkiewicz , 786 N.Y.S.2d 245 ( 2004 )

Spain, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 22, 2003, which, upon reconsideration, adhered to its prior decision ruling, inter alia, that claimant was ineligible to receive unemployment insurance benefits because he was unable to file a subsequent valid original claim pursuant to Labor Law § 527.

Claimant filed a previous valid original claim for unemployment insurance benefits pursuant to Labor Law § 527 on December 18, 2000 and was assigned a weekly benefit rate of $290. He filed the subject claim on December 24, 2001, alleging that his last day of employment had been December 6, 2000. Initial determinations disqualified claimant from receiving unemployment insurance benefits on the ground that he had insufficient earnings to meet the work requirements to requalify for a subsequent valid original claim effective December 24, 2001, and reduced claimant’s right to receive future benefits by 80 effective days on the basis that he submitted a fraudulent W-2 form showing earnings in 2001 in order to obtain benefits. After hearings, an Administrative Law Judge overruled those determinations and granted him benefits. The Unemployment Insurance Appeal Board, however, reversed and reinstated the initial determinations. Upon reconsideration, the Board adhered to its decision, and claimant now appeals.

We affirm. In order to file a subsequent valid original claim, claimant must have worked and been paid remuneration for such work since the beginning of his previous claim in an amount equal to at least five times his weekly benefit rate (see Labor Law § 527 [6]). Whether a claimant has sufficient employment in his base period is a factual question for the Board to resolve and its determination will be affirmed if supported by substantial evidence (see Matter of Johnson [Commissioner of Labor], 274 AD2d 736, 736 [2000]; Matter of Strauch [Hudacs], 193 AD2d 1044, 1044 [1993]).

Here, claimant testified that he incorporated a restaurant and catering business known as Mazn Restaurant, Inc. in 1994 and worked as an employee of the business since 1995. He asserted that he worked from July through August 2001 and earned $2,400. The Board, finding his testimony inconsistent, rejected it as incredible and unworthy of belief. The record indicates that, among other things, the business failed to pay unemployment insurance tax payments in 1994, 1995 and 2001, and had been dissolved by proclamation of the Department of State in September 1998. Additionally, at a March 2002 administrative hearing, claimant submitted a W-2 form reflecting $2,400 in wages for the 2001 tax year. Claimant ultimately conceded that he created the W-2 form himself and listed the business at his sister’s home address in an effort to evade creditors. Given the Board’s authority to resolve issues of credibility and evaluate the evidence presented, we conclude that there is substantial evidence to support the Board’s decision (see Matter of Kwiatkowska [Commissioner of Labor], 263 AD2d 755, 756 [1999]; Matter of Akley [Commissioner of Labor], 255 AD2d 677, 678 [1998]).

Mercure, J.E, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.