Opinion
July 23, 1981
Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 6, 1980, which affirmed the decision of the Administrative Law Judge sustaining the revised initial determinations of the Industrial Commissioner holding claimant ineligible to receive benefits because she was not totally unemployed; charging her with a recoverable overpayment of $2,177.50 in benefits; and holding that she willfully made false statements to obtain benefits by reason of which forfeiture of 272 effective days was imposed. Claimant received benefits of $65 weekly upon an original claim filed April 4, 1977 through January 15, 1978. She failed to disclose her regular visits to a local beauty salon where she performed receptionist and secretarial services in return for which she received hair cuts and styling without charge. The board affirmed findings that she fraudulently misrepresented her status to obtain benefits and imposed the penalties described above. The issue presented is whether the record contains evidence to substantiate the determination that claimant fraudulently misrepresented her employment status, which finding is a requisite to board review of any determination more than one year after it has been made (Labor Law, § 597, subd 3). We find substantial evidence in the record to support such finding in the affidavits of disinterested witnesses and in claimant's affidavit and testimony and, therefore, affirm (Matter of Mantel [Ross], 67 A.D.2d 786; Matter of Magazzu [Ross], 57 A.D.2d 692; Matter of Utter [Levine], 52 A.D.2d 994). Attempts to explain or rehabilitate claimant's testimony comprise questions of credibility solely within the province of the board (Matter of Woods [Ross], 54 A.D.2d 515; Matter of Gonzalez [Levine], 53 A.D.2d 725; Matter of Brewer [Levine], 53 A.D.2d 751). Willful misrepresentation is an issue solely within board province and being supported by substantial evidence, its determination should be affirmed (Matter of Muller [Levine], 50 A.D.2d 1005). Claimant regularly performed services for which another employee would have been paid. Her reports affirming total unemployment being false and willfully made substantiate the sanctions imposed by the board. Decision affirmed, without costs. Kane, J.P., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.