                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523380
________________________________

In the Matter of the Claim of
   STEPHEN M. DENES,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

Before:   Peters, P.J., Garry, Lynch, Devine and Mulvey, JJ.

                             __________


     Stephen M. Denes, Sugar Loaf, appellant pro se.

      Eric T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for respondent.

                             __________


      Appeals (1) from a decision of the Unemployment Insurance
Appeal Board, filed September 25, 2015, which ruled, among other
things, that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed, and (2)
from a decision of said Board, filed January 15, 2016, which
denied claimant's application for reopening and reconsideration.

      Claimant was appointed to a seven-year term as a member of
the Town of Chester Planning Board on March 1, 2011 and, in that
capacity, attended eight bimonthly meetings between October 17,
2012 and May 1, 2013. His duties included reviewing matters
pending before the Planning Board, which required meeting with
and questioning developers, engineers and homeowners at meetings.
Claimant submitted a job application and employment eligibility
verification and tax withholding forms, and the Town paid him an
annual salary of $3,253 at the end of 2012 and $3,350.99 at the
end of 2013 and issued W-2 tax forms. Claimant applied for
                              -2-                523380

unemployment insurance benefits on October 12, 2012 and
thereafter certified eight times, until May 5, 2013, that he did
not work during the relevant period although he had attended
Planning Board meetings as a member. The Department of Labor
issued an initial determination that found claimant ineligible to
receive unemployment insurance benefits, effective October 12,
2012 until May 5, 2013, because he was not totally unemployed on
the dates when he participated in Planning Board meetings. That
determination charged claimant with overpayments of $810 in
benefits and reduced his right to receive future benefits by 60
days, and imposed a penalty of $121.50 based upon his willful
representations to obtain benefits. Following a hearing, an
Administrative Law Judge sustained the initial determination and
the Unemployment Insurance Appeal Board (hereinafter the Board)
affirmed, finding that claimant was not totally unemployed on the
dates he performed services at Planning Board meetings. The
Board thereafter denied claimant's request for reopening and
reconsideration, and he now appeals from both decisions.

      We affirm. Eligibility for unemployment insurance benefits
is limited to claimants who are "totally unemployed" (Labor Law
§ 591 [1]), defined as "the total lack of any employment on any
day" (Labor Law § 522). This presents a factual question for the
Board to resolve and its determination will be upheld if
supported by substantial evidence (see Matter of Roberson
[Commissioner of Labor], 142 AD3d 1259, 1260 [2016]). Here,
claimant did not dispute that, while receiving unemployment
insurance benefits, he attended Planning Board meetings on the
dates in issue in his capacity as an appointed member, and that
he received compensation for that position. Thus, substantial
evidence supports the Board's decision that he was not totally
unemployed on those days and was, therefore, ineligible to
receive unemployment insurance benefits (see id.).1 Contrary to


    1
        While claimant's position on the Planning Board may be
"policymaking or advisory" and, thus, not qualify as employment
for purposes of filing a valid original claim and obtaining
unemployment insurance benefits (see Labor Law § 565 [2] [f]),
this remunerated position nonetheless is relevant to the issue of
whether claimant is "totally unemployed" while certifying for
                              -3-                523380

claimant's arguments, the unemployment insurance handbook, which
was available to him, clearly advised that "[y]ou are considered
employed on any day when you perform any services-even an hour or
less" and that "[a]ny activity that brings in or may bring in
income at any time must be reported." Thus, the factors that
claimant relies upon, including that this was not his primary
occupation and that he was not paid based upon attendance at each
meeting, are irrelevant to the question of total unemployment.

      Substantial evidence also supports the Board's factual
determination that claimant made willful representations and
false statements to obtain benefits when he certified for
benefits, attesting that he had performed no work on days when he
had provided services as a member of the Planning Board,
permitting recoverable overpayments, forfeiture and a civil
monetary penalty2 (see Labor Law § 594; Matter of Kachmarik
[Commissioner of Labor], 138 AD3d 1332, 1333-1334 [2016]).
Pursuant to the handbook, parts of which claimant admitted
reading and all of which was available to him, notice was given
that "any activity" that brings in income and "all" work
performed must be reported, regardless of whether or not it is
for a primary occupation, involves supervisory responsibilities,
is part time or is compensated per diem or by a small stipend.
Thus, the record supports the inference and finding of
willfulness. The imposition of a forfeiture penalty was also
authorized and we decline to disturb it (see Labor Law § 594 [1];
Matter of McCann [Commissioner of Labor], 143 AD3d 1033, 1035
[2016]). Claimant's remaining contentions, to the extent that




benefits based upon former employment (Labor Law § 591 [1]).
    2
        The amendment to Labor Law § 594 (4) authorizing a civil
penalty for willful misrepresentations is applicable to the
initial determination here made on April 2015, as the Legislature
provided that the amendment would apply to "overpayments
established after October 1, 2013" (L 2013, ch 57, part O, §§ 16,
29 [e]).
                                 -4-                  523380

they are preserved for our review, similarly lack merit.3

         Peters, P.J., Garry, Lynch, Devine and Mulvey, JJ., concur.



         ORDERED that the decisions are affirmed, without costs.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     3
        Claimant has not raised any arguments in his brief
regarding the Board's denial of his application to reopen or
reconsider and, as such, has abandoned any claims in that regard
(see Matter of Clarke [Select Med. Corp., Inc.–Commissioner of
Labor], 139 AD3d 1285, 1288 n [2016]).
