IN RE: the Claim of Karen S. GLAZER

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

IN RE: the Claim of Karen S. GLAZER, Appellant. Commissioner of Labor, Respondent.

Decided: September 16, 2004

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and KANE, JJ. Karen S. Glazer, New York City, appellant pro se. Eliot Spitzer, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 18, 2003, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits from November 5, 2002 through March 2, 2003 because she was not capable of work.

Claimant was advised in October 2002 that she would need back surgery and planned to have it in January 2003.   After she was laid off from her job on November 4, 2002, she reopened a prior claim for unemployment insurance benefits.   Claimant rescheduled her surgery for November 25, 2002.   She filed a claim for disability benefits on November 22, 2002.   As part of the application, she submitted a physician's statement indicating that she was disabled from performing her job as of November 4, 2002.   She had the surgery as scheduled and was medically cleared to return to work on February 12, 2003.

Claimant certified to the Department of Labor that she was able to work for the weeks ending November 10, 2002, November 17, 2002, November 24, 2002, February 9, 2003, February 16, 2003, February 23, 2003 and March 2, 2003.   She received unemployment insurance benefits in the amount of $642.50 for the weeks in November 2002 that she certified.   In addition, she received disability benefits from November 25, 2002 through March 2, 2003.

On appeal, claimant challenges the Unemployment Insurance Appeal Board's decision finding her ineligible to receive benefits from November 5, 2002 through March 2, 2003 on the basis that she was not capable of working, charging her with a recoverable overpayment of benefits in the amount of $642.50 and reducing her right to receive future benefits by 40 days due to her willful misrepresentation.   Based upon our review of the record, we find that substantial evidence supports the Board's decision (see Matter of Cromwell [Commissioner of Labor], 278 A.D.2d 555, 718 N.Y.S.2d 226 [2000];  Matter of Kaminski [Sweeney], 233 A.D.2d 737, 650 N.Y.S.2d 1015 [1996] ).   The statement of claimant's physician, together with her receipt of disability benefits in November 2002 and continuing through the beginning of March 2003, establishes that claimant was unable to work during the time period at issue.   The fact that claimant certified that she was able to work during a portion of this time period, when she was not, amply supports the Board's finding of willful misrepresentation (see Matter of Petrillo [Commissioner of Labor], 2 A.D.3d 948, 767 N.Y.S.2d 679 [2003] ).

ORDERED that the decision is affirmed, without costs.

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