                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 25, 2014                   518279
________________________________

In the Matter of the Claim of
   KAREN A. GIBBONS,
                    Respondent.

THE ANIMATION PROJECT,                      MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Peters, P.J., Lahtinen, McCarthy, Devine and Clark, JJ.

                             __________


      Seyfarth Shaw, LLP, New York City (Richard M. Resnik of
counsel), for appellant.

      Cynthia Feathers, Glens Falls, for Karen A. Gibbons,
respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed April 1, 2013, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      From September 2010 until December 2011, claimant worked as
an art therapist for an organization that provides therapeutic
and skills-based services to at-risk youth. She worked
approximately 40 hours per week and was paid an annual salary of
$40,000 with benefits. She was laid off and began collecting
unemployment insurance benefits. Shortly after her lay off, the
employer sent claimant an email inquiring about her interest in
working on an upcoming project, the details of which had not been
finalized. The employer indicated that the project would likely
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entail working with three groups, for roughly six to eight hours
per week. It would pay $50 per hour without benefits, which was
less than her customary $100 hourly rate, and would run for 12
weeks, ending on March 31, 2012. Claimant responded that she was
not interested in the project. Thereafter, the Department of
Labor issued an initial determination finding that claimant was
not entitled to receive benefits because she refused an offer of
suitable employment without good cause, and imposed a recoverable
overpayment and forfeiture penalty. Following a hearing, the
Administrative Law Judge sustained the determination. The
Unemployment Insurance Appeal Board, however, reversed this
decision and concluded that claimant was eligible to receive
benefits. This appeal by the employer ensued.

      Initially, it is for the Board to decide whether a claimant
has refused an offer of suitable employment for which he or she
is reasonably fitted by training and experience (see Labor Law §
593 [2]), and its decision in this regard will be upheld if
supported by substantial evidence (see Matter of McKeon
[Community Health & Home Care, Inc.–Commissioner of Labor], 306
AD2d 792, 792 [2003]; Matter of Gibbs [Commissioner of Labor],
273 AD2d 672, 672 [2000]). Here, evidence was presented that the
details of the project were not finally established at the time
the employer made its inquiry, and the time frame and required
hours were also not definitive (compare Matter of Turner
[Commissioner of Labor], 6 AD3d 915, 916 [2004]). In view of
this, substantial evidence supports the Board's finding that
claimant was not given a bona fide offer of suitable employment
which she refused. Moreover, even if we were to conclude that
she was given a bona fide offer of employment, the terms were
substantially less favorable than the terms of her employment
prior to her lay off and, consequently, she was not compelled to
accept it (see Matter of Knoblauch [Mark Custom Recording
–Sweeney], 239 AD2d 761, 763 [1997]). Accordingly, we find no
reason to disturb the Board's decision.

      Peters, P.J., Lahtinen, McCarthy, Devine and Clark, JJ.,
concur.
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ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
