                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523170
________________________________

In the Matter of the Claim of
   SCOTT L. GUIBORD,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

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

                             __________


      Scott L. Guibord, Basking Ridge, New Jersey, appellant
pro se.

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

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed August 21, 2015, which, among other things, charged
claimant with a recoverable overpayment of unemployment insurance
benefits.

      Claimant applied for and received unemployment insurance
benefits between January 14, 2015 and February 6, 2015 and,
during this time, performed part-time work for a local
municipality. He received an unemployment insurance handbook
explaining his obligation to report any work performed, but
failed to disclose his part-time work to the Department of Labor
when certifying for benefits. As a result, the Department issued
an initial determination finding claimant ineligible to receive
benefits during the relevant time period due to a lack of total
unemployment and, upon finding that claimant made false
statements to obtain benefits, charged him with a recoverable
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overpayment of $630 (see Labor Law § 597 [4]), reduced his right
to receive future benefits by 24 days and imposed a civil penalty
of $100 (see Labor Law § 594). Following a hearing, an
Administrative Law Judge upheld the finding of ineligibility, but
ruled that the overpayment was not recoverable and overturned the
forfeiture and civil penalties. On appeal, the Unemployment
Insurance Appeal Board reversed the Administrative Law Judge's
findings with respect to the recoverable overpayment, as well as
the forfeiture and civil penalties, and sustained the initial
determination. Claimant now appeals.

      Claimant's sole challenge is to the Board's finding that he
made willful misrepresentations to obtain benefits and its
imposition of a recoverable overpayment, and forfeiture and civil
penalties, as a result thereof. "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 Kachmarik
[Commissioner of Labor], 138 AD3d 1332, 1333 [2016]).
Significantly, "[a] willful misrepresentation is a false
statement that is made knowingly, intentionally or deliberately
and does not require proof of criminal intent to defraud" (Matter
of Deutsch [Commissioner of Labor], 126 AD3d 1209, 1210 [2015];
see Matter of Brown [Commissioner of Labor], 115 AD3d 1108, 1109
[2014]). Indeed, "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 Deutsch [Commissioner of Labor], 126 AD3d at 1210).

      Here, claimant admitted that he did not report the work
that he performed for the municipality, but maintained that this
was a mistake attributable to his failure to recall that the
definition of "work" set forth in the handbook included any work
performed, even if minimal. Claimant's lack of intent to make a
false statement is not an excuse for making a factually false
statement when certifying for benefits (see Matter of Mondragon
[Commissioner of Labor], 85 AD3d 1477, 1478 [2011]).
Accordingly, this does not provide cause to disturb the Board's
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finding that claimant made a willful misrepresentation to obtain
benefits, nor the resulting imposition of a recoverable
overpayment and forfeiture penalty (see Matter of Crist
[Commissioner of Labor], 113 AD3d 1016, 1018 [2014]), as well as
a civil penalty under Labor Law § 594.

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



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
