IN RE: the Claim of NAOMI FOSTER

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

IN RE: the Claim of NAOMI FOSTER, Appellant.  COMMISSIONER OF LABOR, Respondent.


Decided: November 26, 2014

Before:  Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ. Cindy R. Katz, Queens Legal Services, Jamaica, for appellant. Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.


Calendar Date:  October 21, 2014

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 12, 2013, which, among other things, ruled that claimant was disqualified from receiving unemployment insurance benefits because she refused an offer of suitable employment.

Claimant, a registered nurse, applied for unemployment insurance benefits following the loss of her job.   Thereafter, claimant received a letter from a former employer, a staffing agency, notifying her that her previous position as a registered nurse was available at one of its facilities.   According to testimony from the employer's representatives, claimant never contacted the staffing agency about the position until months after the letter was sent and presented numerous excuses for her failure to respond.   Although claimant testified that she had called within a week of receiving the letter but was told no job was available, the conflict in the testimony presented a credibility issue for the Unemployment Insurance Appeal Board to resolve (see Matter of Newman [Commissioner of Labor], 43 AD3d 592, 593 [2007];  Matter of Turner [Commissioner of Labor], 6 AD3d 915, 916 [2004] ).   In light of the Board's credibility determinations, we find that its decision disqualifying claimant from receiving unemployment insurance benefits and charging her with a recoverable overpayment is supported by substantial evidence and will thereefore not be disturbed (see Matter of Guido [Commissioner of Labor], 108 AD3d 919, 920 [2013];  Matter of Scuderi [Commissioner of Labor], 40 AD3d 1234, 1235 [2007] ).

Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ., concur.

ORDERED that the decision is affirmed, without costs.


Robert D. Mayberger

Clerk of the Court

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