In re the Claim of Slayton ( 1983 )

Mikoll, J.,

dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. The claimant’s candid revelations of his activities with the theater made on three occasions to the agency contradict a finding of willful misrepresentation. The first statement was made November 17, 1976 while he was being paid benefits and during which time the theater was formed. On June 22,1978, he made another statement to the agency reiterating his involvement with the theater before and during the time when the theater’s CETA funding was in effect. On April 21, 1981, he again made a statement about his continuing involvement with the theater and, also, on January 4,1982. He was never instructed by the agency that such activities constituted employment and to desist therefrom while on unemployment. The failure of the agency to disqualify him as to benefits lulled him into failing to comprehend that his activities were employment. Since the periods in issue here were in 1979, 1980 and 1981, there is no authority to review periods prior to January 14,1981 absent fraud or willful misrepresentation. As to periods subsequent to January 14,1981,1 conclude that claimant’s weekly certification of no employment accorded with his understanding that his volunteer work did not constitute employment and that the benefits were accepted by him in good faith. Those benefits are, therefore, also not recoverable (see Labor Law, § 597, subd 4; Matter of Valvo [Ross], 83 AD2d 344, affd 57 NY2d 116). The decision should be reversed.