IN RE: the Claim of Santonieo E. MILLER

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

IN RE: the Claim of Santonieo E. MILLER, Appellant. Albany Housing Authority, Respondent. Commissioner of Labor, Respondent.

Decided: April 24, 2008

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and KAVANAGH, JJ. Santonieo E. Miller, Albany, appellant pro se. Joseph M. Brennan, Albany, for Albany Housing Authority, respondent. Andrew M. Cuomo, Attorney General, New York City (Gary Leibowitz of counsel), for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 17, 2007, which denied claimant's application to reopen and reconsider a prior decision.

Claimant worked for nearly four years as a maintenance person for the employer until he was discharged in February 2006 after it was discovered that he had falsified his employment applications by omitting information regarding his criminal convictions.   Following various proceedings, in a decision filed May 3, 2007 the Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits on the basis that he lost his employment through misconduct and, by a decision upon reconsideration filed July 18, 2007, adhered to that decision.   Claimant's second application to reopen and reconsider was denied by the Board in August 2007.   It is from that decision that claimant appeals, challenging the merits of the underlying determination denying his application for benefits.

 Initially, because claimant's applications for reopening and reconsideration were made in a timely manner, the merits of the underlying determination are properly before this Court (see Matter of Yastrzemski [Commissioner of Labor], 32 A.D.3d 1123, 821 N.Y.S.2d 490 [2006], lv. dismissed 8 N.Y.3d 896, 832 N.Y.S.2d 899, 865 N.E.2d 8 [2007] ).   As for the merits, inasmuch as even the inadvertent falsification or omission of information from one's employment application can constitute disqualifying misconduct (see Matter of Dockal [Commissioner of Labor], 34 A.D.3d 1081, 1081, 824 N.Y.S.2d 777 [2006];  Matter of Redden [Commissioner of Labor], 277 A.D.2d 629, 630, 716 N.Y.S.2d 122 [2000] ), substantial evidence supports the determination that claimant is disqualified from receiving unemployment insurance benefits on that basis.   Claimant's testimony that he was told by a supervisor how to answer the question regarding his criminal convictions, which was contradicted by the employer, presented a credibility issue for the Board to resolve (see Matter of White [Commissioner of Labor], 48 A.D.3d 854, 855, 850 N.Y.S.2d 710 [2008] ).

ORDERED that the decision is affirmed, without costs.

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