IN RE: the Claim of Marie LICCIARDELLO

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

IN RE: the Claim of Marie LICCIARDELLO, Appellant. Commissioner of Labor, Respondent.

Decided: November 25, 1998

Before CARDONA, P.J., MERCURE, WHITE, SPAIN and CARPINELLO, JJ. Mitchell L. Pashkin, Huntington, for appellant. Dennis C. Vacco, Attorney-General (Steven S. Park of counsel), New York City, for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 16, 1997, which, inter alia, reduced claimant's weekly unemployment insurance benefit rate.

After leaving her job as a teacher employed by the New York City Board of Education, claimant began to receive payments from her pension fund at the rate of $250 per week.   In addition, claimant received unemployment insurance benefits at the rate of $300 per week.   The Unemployment Insurance Appeal Board subsequently ruled that claimant's benefit rate was subject to reduction by the amount of 50% of her pension payments, reflecting her employer's contribution of over 50% of the funding of her pension plan.   The Board further ruled that claimant had previously received a recoverable overpayment of benefits in the amount of $3,250 for which she was liable.   We affirm.

 Pursuant to Labor Law § 600(7), a claimant's benefit rate will be reduced in cases where the employer has contributed to the pension fund (see, Matter of Hall [Hartnett], 162 A.D.2d 96, 98, 563 N.Y.S.2d 129).   The amount of the reduction is governed by factoring in the respective contributions made by the claimant and the employer.   In this matter, the actuarial value of claimant's pension, given her life expectancy, was calculated at $138,000.   Because claimant's contributions to the pension fund came to $33,000, approximately 25% of the actuarial value of the pension, substantial evidence supports the Board's decision ruling that the employer contributed over half of the actuarial value of her pension, thereby triggering the statutory reduction in benefit payments imposed by the Board (see, Matter of Lord [Sweeney], 241 A.D.2d 685, 663 N.Y.S.2d 1013;  Matter of D'Angelo [Sweeney], 240 A.D.2d 800, 658 N.Y.S.2d 514).

 We reject claimant's contention that her cash contributions to the pension fund should be enhanced by a hypothetical annual interest rate of 8.25%. There is no authority in either the relevant statutory or case law for an enhanced valuation of a claimant's contribution by adding the interest which the amount contributed would have earned if invested.

ORDERED that the decision is affirmed, without costs.

MERCURE, Justice.


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