IN RE: the Claim of Arthur T. ZEGELBONE (2005)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 29, 2004, which, inter alia, charged claimant with a recoverable overpayment of unemployment insurance benefits.

In January 2003, claimant was separated from employment, under circumstances not at issue, and filed a claim for unemployment insurance benefits.   The following month, claimant created a sole proprietorship for the purpose of establishing a magazine.   Claimant admittedly engaged in activities related to the establishment of the magazine, but did not report such activities when certifying for benefits during the time period at issue.   Given that claimant admitted that he had read the informational handbook advising him of the need to report any work-related activities that may generate income at any time, we find that the Unemployment Insurance Appeal Board's decision that he made willful misrepresentations and is liable for a recoverable overpayment of benefits is supported by substantial evidence (see Matter of Sharon [Commissioner of Labor], 12 A.D.3d 1018, 1018-1019, 785 N.Y.S.2d 183 [2004];  Matter of Holmes [Commissioner of Labor], 307 A.D.2d 575, 576, 762 N.Y.S.2d 308 [2003];  Matter of Luongo [Commissioner of Labor], 276 A.D.2d 996, 997, 714 N.Y.S.2d 599 [2000] ).   Claimant's exculpatory explanation that he did not consider his activities to be work related as defined by the handbook since he was not sure the magazine would generate income presented a credibility issue that was within the Board's discretion to resolve (see Matter of Sierpinski [Commissioner of Labor], 308 A.D.2d 668, 669, 764 N.Y.S.2d 665 [2003];  Matter of Vogt [Commissioner of Labor], 267 A.D.2d 742, 742, 699 N.Y.S.2d 779 [1999], lv. denied 94 N.Y.2d 762, 707 N.Y.S.2d 622, 729 N.E.2d 341 [2000] ).

ORDERED that the decision is affirmed, without costs.