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IN RE: the Claim of Paul J. RICHMAN (1998)

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Paul J. RICHMAN, Appellant. Commissioner of Labor, Respondent.

Decided: October 29, 1998

Before CARDONA, P.J., MERCURE, WHITE, PETERS and CARPINELLO, JJ. Paul J. Richman, Washington, D.C., appellant in person. Dennis C. Vacco, Attorney-General (Dawn A. Foshee of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 11, 1997, which ruled that claimant was ineligible to receive unemployment insurance benefits because he failed to file a valid original claim.

 Claimant, an attorney employed by the State Department of Economic Development, challenges a decision of the Unemployment Insurance Appeal Board finding him ineligible to receive benefits because he was employed in a major nontenured policymaking or advisory position within the meaning of Labor Law § 565(2)(e).   The record reveals that claimant regularly made policy recommendations at the request of the Executive Deputy Commissioner, developed negotiating strategies with the Governor's Counsel's office, aided the policy units and counsel's offices of 22 State agencies in formulating their legislative initiatives, coordinated the submission of bills from economic development agencies for approval by the Governor's Counsel's office and assisted the Deputy Commissioner of Policy with coordinating the duties of the economic development subcabinet.

 In our view, this proof provides a rational basis from which the Board could conclude that claimant held a major nontenured policymaking or advisory position and that he was therefore ineligible to receive benefits (see, Matter of Todaro [State Ins. Fund-Commissioner of Labor], 250 A.D.2d 1017, 673 N.Y.S.2d 263;  Matter of Malgieri [Sweeney], 219 A.D.2d 751, 631 N.Y.S.2d 85).   Although claimant testified that he neither engaged in policymaking nor acted in an advisory capacity, this presented a credibility issue for the Board to resolve (see, Matter of Franconeri [New York City Dept. of Personnel-Hudacs], 190 A.D.2d 970, 594 N.Y.S.2d 83).

ORDERED that the decision is affirmed, without costs.


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