Matter of Oberman (Commr. of Labor) ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 6, 2016 521553
________________________________
In the Matter of the Claim of
IGOR OBERMAN,
Appellant.
NEW YORK CITY DEPARTMENT OF
CITYWIDE ADMINISTRATIVE MEMORANDUM AND ORDER
SERVICES,
Respondent.
COMMISSIONER OF LABOR,
Respondent.
________________________________
Calendar Date: September 16, 2016
Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.
__________
Igor Oberman, New York City, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York City
(Susan Paulson of counsel), for New York City Department of
Citywide Administrative Services, respondent.
Eric T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for Commissioner of Labor, respondent.
__________
Aarons, J.
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed November 12, 2014, which ruled, among other things,
that claimant was disqualified from receiving unemployment
insurance benefits because his employment was terminated due to
misconduct.
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From June 2012 to September 2013, claimant was employed by
the New York City Taxi and Limousine Commission (hereinafter TLC)
as an executive agency managing attorney in TLC's consumer
complaints unit. While employed by TLC, claimant served as
president of the Board of Directors of a residential housing
cooperative and, in February 2013, registered with the New York
City Campaign Finance Board as a candidate for a seat on the City
Council. After receiving an anonymous complaint that claimant
was using TLC's resources to conduct his campaign for election to
the City Council, TLC requested the New York City Department of
Investigation (hereinafter DOI) to investigate claimant's
campaign-related activities during his employment. Thereafter,
claimant informed TLC that he would take a leave of absence from
his employment pursuant to a directive requiring claimant to do
so upon, among other things, publicly declaring his intent to
seek elected public office. Upon completing its investigation,
DOI concluded that claimant had misused TLC's resources prior to
taking a leave of absence, and, in September 2013, TLC terminated
claimant's employment, prompting claimant to apply for
unemployment insurance benefits, which he began to receive at a
weekly rate of $405. The Department of Labor subsequently
determined that claimant was disqualified from receiving benefits
because his employment was terminated for misconduct and found
that claimant had made a willful misrepresentation on his
application for benefits insofar as he claimed that he had been
discharged for lack of work. The Department charged claimant
with an overpayment of $4,050 in benefits, reduced his right to
receive future benefits by eight effective days and imposed a
civil penalty of $607.50. Ultimately, the Unemployment Insurance
Appeal Board upheld the Department's initial determination and
penalties imposed pursuant to that determination. Claimant now
appeals.
We affirm. "Whether a claimant has engaged in
disqualifying misconduct is a factual question for the Board to
resolve and its determination will not be disturbed if supported
by substantial evidence" (Matter of Chirico [City of Syracuse—
Commissioner of Labor], 136 AD3d 1137, 1138 [2016] [internal
quotation marks and citations omitted]; see Matter of Hector
[Commissioner of Labor], 128 AD3d 1258, 1259 [2015]). "'It is
well settled that failure to abide by a known policy of the
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employer can constitute disqualifying misconduct'" (Matter of
Smith [Commissioner of Labor], 138 AD3d 1341, 1342 [2016],
quoting Matter of Wise [Commissioner of Labor], 19 AD3d 795, 795
[2005] [citations omitted]; see Matter of Intini [Commissioner of
Labor], 123 AD3d 1347, 1349 [2014]).
TLC's limited-use policy, of which claimant was aware,
permitted limited personal use of TLC's office and technology
resources as long as such use does not interfere with official
duties and responsibilities. The record evidence, including the
report detailing the findings of DOI's investigation,
establishes, however, that claimant's use of TLC's resources,
including his work computer and telephone, to further his
political campaign efforts and his work with the residential
housing cooperative was extensive. In particular, various
documents related to his work with his residential housing
cooperative, in addition to documents related, as well as scanned
checks payable, to claimant's campaign were found on his work
computer. In addition, of the 1,900 telephone calls that
claimant made at work between January and May 2013, approximately
only 25% of those calls were related to TLC's official business.
Furthermore, of the telephone calls made that were unrelated to
claimant's employment, the record evidence adequately
demonstrates that the majority of those calls pertained to his
responsibilities as president and board member of his residential
housing cooperative, his campaign fund-raising efforts and his
solicitation and receipt of campaign contributions (see Matter of
Smith [Commissioner of Labor], 138 AD3d at 1342). Claimant
denied at the hearing that he used his work computer and
telephone at TLC to pursue his campaign efforts, to solicit
contributions for his campaign or to perform work for the
residential housing cooperative, but this presented issues of
credibility within the exclusive province of the Board (see
Matter of Thompson [St. Paul's Episcopal Church—Commissioner of
Labor], 134 AD3d 1274, 1275 [2015]; Matter of Andrews [A.C. Roman
& Assoc.—Commissioner of Labor], 118 AD3d 1216, 1217 [2014]),
which was entitled to credit the competing evidence presented at
the hearing and reject claimant's exculpatory claims.
Furthermore, insofar as claimant inaccurately represented when
applying for benefits that he was unemployed due to a lack of
work when he had previously been made aware of DOI's
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investigation of him, we find no reason to disturb the Board's
imposition of a recoverable overpayment or forfeiture penalty
based upon his willful misrepresentations (see Labor Law § 594
[4]; Matter of Sarson [Commissioner of Labor], 138 AD3d 1327,
1327 [2016]; Matter of Campon [Commissioner of Labor], 122 AD3d
1228, 1229 [2014]; Matter of Guess [Commissioner of Labor], 119
AD3d 1256, 1257 [2014]).
Peters, P.J., McCarthy, Garry and Clark, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court