IN RE: the Claim of Edward D. HALPER (1998)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 13, 1997, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

 After reopening claimant's case, the Unemployment Insurance Appeal Board ruled that claimant was ineligible to receive benefits because he was not totally unemployed, charged him with a recoverable overpayment of $300 and reduced his right to future benefits upon a finding that he willfully made false statements to obtain benefits.   The hearing evidence established that claimant submitted time sheets to his employer indicating that he worked over 51 hours during the period he was receiving benefits and that the employer compensated him for his services.   In our view, this proof provides substantial evidence to support the Board's finding that claimant was not totally unemployed while he was collecting benefits and that he made willful false statements in order to obtain benefits (see, Matter of Tenore [Sweeney], 244 A.D.2d 749, 664 N.Y.S.2d 667;  Matter of Solieri [Sweeney], 228 A.D.2d 754, 643 N.Y.S.2d 730).   Claimant's denial that he performed services for the employer on the dates in question created a credibility issue for the Board to resolve (see, Matter of Benedetto [Stuart R. Nadelson P.C.-Sweeney], 239 A.D.2d 726, 657 N.Y.S.2d 498).   We will not disturb the determination because of the employer's failure to produce a witness as ordered by the Board since the record shows that it made a diligent effort to secure the witness' attendance.   Moreover, claimant did not object to the Administrative Law Judge's determination not to adjourn the hearing so that a subpoena could be issued to the witness (see, Matter of Acabeo [New York City Bd. of Educ.-Sweeney], 234 A.D.2d 851, 651 N.Y.S.2d 932).   Finally, there is nothing to prevent the Board from relying upon hearsay testimony in granting the employer's application to reopen the case (see, 12 NYCRR 461.8).   We have reviewed claimant's remaining contentions and find them to be without merit.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.