Opinion
November 22, 1967
Appeal by claimant from a decision of the Unemployment Insurance Appeal Board forfeiting claimant's future benefit rights for 20 effective days on the ground that he willfully made a false statement to obtain benefits. Claimant, a bookkeeper, was offered and accepted employment on August 25, 1966, but requested that he start work on Monday, August 29, 1966. The employer agreed, but asked that claimant come in on Friday, August 26, to familiarize himself with employer's bookkeeping methods. Although he worked seven hours for the employer on the 26th of August, nothing was said about claimant being paid. On August 29, 1966 claimant certified to the insurance office that he was totally unemployed the previous week. The next day he was informed by the employer that he would be paid for his August 26 services and he did in fact receive $26. On September 6, 1966, when claimant reported to the insurance office, he failed to notify anyone that he had been paid the $26, although at the time he was aware of the regulations requiring him to report the days he worked. It was not until September 12 that he admitted actually working on August 26 when he stated "I have no reason for marking an `N' for this date. * * * I thought it would be foolish to mark that I worked for just that one day." In spite of this quoted statement to the contrary, appellant contends that his certification as to total unemployment was not willfully false because he did not expect to be paid for that day. Section 594 Lab. of the Labor Law does not require a criminal intent or proof sufficient to support larceny ( Matter of Bernstein [ Corsi], 278 App. Div. 625, affd. 303 N.Y. 755). The determination of whether a misrepresentation is "willful" depends on factual findings and this is within the exclusive province of the board if supported by substantial evidence (see Matter of Campbell [ Catherwood], 23 A.D.2d 515; Matter of Vick [ Catherwood], 12 A.D.2d 120; Matter of Jouravel [ Catherwood], 13 A.D.2d 863). We cannot say as a matter of law that the board, in the instant case, could not reach the decision rendered. Decision affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Aulisi, J.