                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 19, 2015                    519295
________________________________

In the Matter of the Claim of
   STUART DEUTSCH,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   January 20, 2015

Before:   Peters, P.J., Garry, Egan Jr. and Devine, JJ.

                             __________


     Stuart Deutsch, Spring Hill, Florida, appellant pro se.

      Eric T. Schneiderman, Attorney General, New York City (Dawn
A. Foshee of counsel), for respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed October 11, 2013, which, among other things, charged
claimant with a recoverable overpayment of unemployment insurance
benefits upon finding that he made a willful misrepresentation to
obtain benefits.

      Claimant filed an application for unemployment insurance
benefits effective July 13, 2009 and began receiving benefits
thereafter. During the benefit week ending September 12, 2010,
claimant worked four days, but the records of the Department of
Labor revealed that he represented that he did not work any days
during this week when certifying for benefits online. He
received benefits totaling $301 for the week in question.

      The Department subsequently issued initial determinations
finding that claimant was ineligible to receive benefits during
this week because he was not totally unemployed and charged him
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with a recoverable overpayment, as well as a forfeiture penalty
upon finding that he made a willful misrepresentation to obtain
benefits. Claimant challenged only that part of the
determinations finding that he made a willful misrepresentation
and he requested a hearing. Due to claimant's failure to appear
at this hearing or a second hearing, and his failure to proceed
at a third hearing, default decisions sustaining the initial
determinations were issued by an Administrative Law Judge
(hereinafter ALJ). Claimant appealed the third default decision
to the Unemployment Insurance Appeal Board, which dismissed the
appeal and referred the matter to the hearing section to treat it
as an application to reopen the third default decision.
Following additional hearings, an ALJ granted the application to
reopen and sustained the initial determinations, including the
finding that claimant made a willful misrepresentation. This
decision was subsequently upheld by the Unemployment Insurance
Appeal Board and claimant now appeals.

      We affirm. "It is well settled that the question of
whether a claimant ha[s] made a willful misrepresentation to
obtain benefits is a factual issue for the Board to resolve and
will be upheld if supported by substantial evidence" (Matter of
Masterpaul [Commissioner of Labor], 76 AD3d 729, 729 [2010]
[citations omitted]; see Matter of Smith [Commissioner of Labor],
107 AD3d 1287, 1288 [2013]). A willful misrepresentation is a
false statement that is made knowingly, intentionally or
deliberately and does not require proof of criminal intent to
defraud (see Matter of Barbera [Commissioner of Labor], 28 AD3d
973, 974-975 [2006]). A false statement made unintentionally or
as a result of confusion may suffice (see Matter of Smith
[Commissioner of Labor], 107 AD3d at 1288). Furthermore, "there
is no valid defense to making a false statement" (Matter of
Bernard [Commissioner of Labor], 53 AD3d 1006, 1006 [2008]).

      Here, claimant admittedly worked during the week ending
September 12, 2010, but certified that he did not work according
to the records maintained by the Department. Although he
maintained that this discrepancy was due to a problem with the
Department's computer operating system, he did not provide any
evidence to substantiate this claim, and his testimony in this
regard presented a credibility issue for the Board to resolve
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(see Matter of Masterpaul [Commissioner of Labor], 76 AD3d at
730). Accordingly, substantial evidence supports the Board's
finding that claimant made a willful misrepresentation, as that
term is defined in this legal context, and we therefore decline
to disturb its decision (see Matter of Nebel [Commissioner of
Labor], 108 AD3d 1007, 1008 [2013]; Matter of Felder
[Commissioner of Labor], 93 AD3d 1122, 1123 [2012]).

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



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
