IN RE: the Claim of John V. DE ROBBIO

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

IN RE: the Claim of John V. DE ROBBIO, Appellant. Commissioner of Labor, Respondent.

Decided: June 24, 2004

Before:  CARDONA, P.J., PETERS, SPAIN, MUGGLIN and ROSE, JJ. John V. De Robbio, Atlantic Highlands, New Jersey, appellant pro se. Eliot Spitzer, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 25, 2003, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant was not totally unemployed.   The record reveals that claimant was employed by a temporary employment agency.   Based upon his representation to the employer that he worked on May 28, 2002 and May 29, 2002 for a client, the employer filled in claimant's time sheet and sent him a paycheck for those days.   Claimant nevertheless certified to the Department of Labor that he was totally unemployed during that week.   Although claimant maintains that the information on the time sheet was incorrect and that he did not provide the employer with the information, this presented a credibility issue for the Board to resolve (see Matter of Sherman [Commissioner of Labor], 267 A.D.2d 568, 569, 699 N.Y.S.2d 222 [1999];  Matter of Benedetto [Stuart R. Nadelson P.C.-Sweeney], 239 A.D.2d 726, 727, 657 N.Y.S.2d 498 [1997] ).   As the record supports the Board's assessment of credibility of the hearing testimony, the decision, including the assessment of a recoverable overpayment, will not be disturbed.

ORDERED that the decision is affirmed, without costs.

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