IN RE: the Claim of ROBIN RIDER

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

IN RE: the Claim of ROBIN RIDER, Appellant.  COMMISSIONER OF LABOR, Respondent.


Decided: April 24, 2014

Before:  Peters, P.J., Lahtinen, McCarthy and Garry, JJ. Law Offices of Lindy Korn, Buffalo (Richard J. Perry of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.


Calendar Date:  March 26, 2014

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 23, 2012, which, among other things, ruled that claimant made willful misrepresentations to obtain benefits.

Substantial evidence supports the May 23, 2012 decision of the Unemployment Insurance Appeal Board charging claimant with a recoverable overpayment of benefits on the ground that she made willful false statements (see Matter of McCool [Commissioner of Labor], 60 AD3d 1117, 1118 [2009];  Matter of Roma [Commissioner of Labor], 265 A.D.2d 634, 635 [1999] ).   The record establishes that in a prior Board decision ruling that claimant was disqualified from receiving benefits due to misconduct, the Board discredited claimant's hearing testimony wherein she denied that she engaged in assaultive behavior towards her coworker.   Claimant did not appeal that decision.   As the Board is vested with the authority to make the factual determination of whether a false statement or misrepresentation was willful, which includes the determination of issues of credibility (see Matter of Barbera [Commissioner of Labor], 28 AD3d 973, 974–975 [2006] ), claimant's false testimony “speaks for itself as an indication of willful misrepresentation” (Matter Czarniak [Ross], 60 A.D.2d 745, 745 [1977] ).   Under these circumstances, the Board's decision will not be disturbed.

Peters, P.J., McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.


Robert D. Mayberger

Clerk of the Court

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