                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    521614
________________________________

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


Calendar Date:   February 23, 2016

Before:   Lahtinen, J.P., Garry, Lynch and Clark, JJ.

                             __________


      Pope, Schrader & Pope, LLP, Binghamton (Kurt Schrader of
counsel), for appellant.

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

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed November 28, 2014, which, among other things,
charged claimant with a recoverable overpayment of unemployment
insurance benefits.

      Claimant received unemployment insurance benefits for the
time period of October 5, 2009 to October 30, 2011. She was also
awarded emergency unemployment compensation benefits and federal
additional compensation benefits (see 26 USC § 3304). The
Department of Labor issued initial determinations that found
claimant ineligible to receive benefits because she was not
totally unemployed during that time period and charged her with a
recoverable overpayment of the different benefits that she
received and also imposed a forfeiture penalty for making willful
misrepresentations pursuant to Labor Law § 594. Following a
hearing, an Administrative Law Judge found that claimant was not
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totally unemployed during the period in question and that she had
made willful misrepresentations to obtain benefits, but modified
the initial determinations by reducing the amount of time that
claimant was ineligible to receive benefits and referred the
matter of the amounts of overpayments and the penalties to the
Department for recalculation. The Unemployment Insurance Appeal
Board affirmed the Administrative Law Judge's decision and
claimant now appeals.

      We affirm. Claimant's sole contention on appeal is that
she did not make willful false statements to obtain benefits and,
therefore, she should not be charged with recoverable
overpayments and forfeiture penalties. "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]; accord Matter of Deutsch
[Commissioner of Labor], 126 AD3d 1209, 1210 [2015]). Further,
"a claimant may be found to have made a willful misrepresentation
to obtain benefits even if the false statement was made
unintentionally or was the result of confusion" (Matter of Smith
[Commissioner of Labor], 107 AD3d 1287, 1288 [2013]; see Matter
of Gazzara [Commissioner of Labor], 60 AD3d 1226, 1227 [2009]).

      Here, during the time in question, claimant worked as the
choir director and organ player for a church. Choir practice was
generally held on Wednesdays and claimant played the organ during
Sunday services. During the months of July and August, however,
there was no choir practice and claimant only occasionally played
the organ on Sundays. Claimant was paid $450 a month during
September through June, and was paid between $100 and $135 for
each day she played the organ during July and August. In
certifying for benefits, claimant admittedly only reported that
she worked on Sundays and did not report the days that she
conducted choir practice. While claimant testified that she was
not paid for choir practice and only reported work for which she
was paid, her failure to report such work was contrary to the
directive regarding part-time work reporting requirements in the
unemployment insurance handbook that she had received. Pursuant
to the handbook, all work is to be reported and one is considered
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employed on any day when he or she performs any services, even
when it is for an hour or less and "it makes no difference
whether this work is in covered employment or whether [he or she]
gets paid for the day." Although claimant testified that she was
given misinformation by Department representatives regarding
having to report the days when there was choir practice, contrary
testimony was presented at the hearing, creating a credibility
issue for the Board's resolution (see Matter of McCann
[Commissioner of Labor], 117 AD3d 1259, 1261 [2014]; Matter of
Yamamura [Commissioner of Labor], 111 AD3d 1049, 1050 [2013]).
Based upon the foregoing, substantial evidence supports the
Board's determination that claimant made willful
misrepresentations to obtain benefits (see Matter of Smith
[Commissioner of Labor], 107 AD3d at 1288; Matter of Gullotti
[Commissioner of Labor], 107 AD3d 1220, 1221 [2013]).

     Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
