Matter of Lucien (Commr. of Labor) , 37 N.Y.S.3d 646 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 22, 2016 522046
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In the Matter of the Claim of
VLADIMIR R. LUCIEN,
Appellant.
MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: August 8, 2016
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.
__________
Vladimir R. Lucien, Medford, appellant pro se.
Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.
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Appeals (1) from a decision of the Unemployment Insurance
Appeal Board, filed September 10, 2015, which, among other
things, ruled that claimant was ineligible to receive
unemployment insurance benefits because he was not totally
unemployed, and (2) from a decision of said Board, filed
September 10, 2015, which, among other things, ruled that
claimant was disqualified from receiving unemployment insurance
benefits because he voluntarily left his employment without good
cause.
As relevant here, claimant filed an initial claim for
unemployment insurance benefits for the week of January 26, 2015
and for the two weeks thereafter, certifying that he had not
worked, and he received benefits for this time based upon his
certifications. While his claim was pending, claimant began
full-time employment for an auto body shop doing detail work at
an hourly rate of $13.75 (earning gross weekly wages in excess of
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$500); the employer refused claimant's request to pay him in cash
"off the books," and payroll records establish that he worked
each day from January 29, 2015 through February 13, 2015, except
February 12. Claimant stopped coming to work and did not return
as promised following a family bereavement leave, during which
his job was held open for him. The Department of Labor issued an
initial determination holding that claimant was ineligible to
receive unemployment insurance benefits, effective January 29,
2015 through February 13, 2015, because he was not totally
unemployed, and charged him with recoverable overpayments and
forfeiture penalties based upon his willful misrepresentations to
obtain benefits. The Department issued a further determination
holding that claimant was disqualified from receiving benefits,
effective February 14, 2015, because he had voluntarily separated
from his auto body detail employment without good cause, charged
him with recoverable overpayments and imposed a civil penalty.
Following a hearing, an Administrative Law Judge upheld those
determinations, which the Board adopted in separate decisions.
Claimant now appeals from both Board decisions.
We affirm. Claimant's admission that he worked 11 days
during the benefit period in question, in addition to the
employer's payroll and time records and testimony documenting his
employment during that time, provide substantial evidence to
support the Board's factual finding that he is ineligible to
receive unemployment insurance benefits during the relevant time
because he was not totally unemployed (see Matter of Shuman
[Commissioner of Labor], 135 AD3d 1284, 1285 [2016]; Matter of
Robinson [Commissioner of Labor], 125 AD3d 1038, 1039 [2015], lv
dismissed 26 NY3d 953 [2015]; see also Labor Law §§ 522, 591 [1]
[a]). Likewise, substantial evidence also supports the Board's
factual determination that claimant voluntarily left his
employment without good cause (see Matter of Faison [Commissioner
of Labor], 120 AD3d 1480, 1481 [2014]). Claimant admitted that
he "quit" his job after his car broke down on February 13, 2015,
although he could have taken the train or a bus to work as he had
done in the past, and that he never returned to work after his
bereavement leave, as promised, and instead looked for another
job; the employer established that he had not been fired. Thus,
we find no reason to disturb the determination that claimant
voluntarily separated from his employment without good cause (see
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Labor Law § 593 [1]; Matter of Brewton [Commissioner of Labor],
118 AD3d 1049, 1050-1051 [2014]). Further, under these
circumstances, the Board's determination that claimant made
willful false representations to obtain benefits is supported by
substantial evidence, allowing for recoverable overpayments and
penalties (see Labor Law § 594; Matter of Kachmarik [Commissioner
of Labor], 138 AD3d 1332, 1333-1334 [2016]).
McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.,
concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court