                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   522780
________________________________

In the Matter of the Claim of
   MALGORZATA KACPERSKA-NIE,
                    Respondent.

DePAULA & CLARK, INC.,                      MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 20, 2016

Before:   Peters, P.J., McCarthy, Lynch, Mulvey and Aarons, JJ.

                             __________


      The Hoffinger Firm, PLLC, New York City (Fran Hoffinger of
counsel), for appellant.

      MFY Legal Services, Inc., New York City (David Urena of
counsel), for Malgorzata Kacperska-Nie, respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed September 25, 2015, which ruled that claimant was
entitled to receive unemployment insurance benefits.

      From May 2010 to September 2013, claimant, a bookkeeper,
worked for DePaula & Clark, Inc., an accounting firm, and was
responsible for, among other things, making payments on behalf of
the employer's clients from their bank accounts. The employer
terminated claimant's employment on September 13, 2013 after she
had authorized four electronic wire transfers of money from the
bank accounts of two of the employer's clients in response to
fraudulent payment requests and invoices that she thought at the
time were legitimate. Thereafter, claimant applied for
                              -2-                522780

unemployment insurance benefits, and the Department of Labor
issued an initial determination finding claimant eligible to
receive benefits. The Unemployment Insurance Appeal Board upheld
that determination, finding that claimant was entitled to receive
benefits because claimant's handling of the at-issue fraudulent
transactions did not rise to the level of misconduct. The
employer now appeals.

      We affirm. "Whether a claimant's actions rise to the level
of disqualifying misconduct is a factual issue for the Board to
resolve, and not every mistake, exercise of poor judgment or
discharge for cause will rise to the level of misconduct" (Matter
of Muniz [Mitarotonda Servs., Inc.— Commissioner of Labor], 140
AD3d 1426, 1427 [2016] [internal quotation marks and citations
omitted]). "Pursuant to our limited review, this Court may not
weigh conflicting evidence or substitute its own judgment, and
if, as here, the findings turn on the credibility of witnesses,
we may not substitute our perceptions for those of the agency"
(Matter of Suchocki [St. Joseph's R.C. Church—Commissioner of
Labor], 132 AD3d 1222, 1223 [2015] [internal quotation marks and
citations omitted]).

      The employer contends that claimant was complicit in the
wire transfers and failed to recognize the obviously fraudulent
nature of the electronic payment requests and invoices that she
received from those individuals responsible for the fraud.
Claimant explained in her testimony, however, that at first she
did not notice anything unusual about the emails that she
received or the attached invoices and that she used the clients'
regular email addresses to confirm whether to pay the invoices.
When claimant received the third fraudulent payment request, she
emailed the employer's president to inquire about this request,
after which she received an email in response purportedly from
the president authorizing the wire transfer. Claimant explained
that she did not realize at that time that this responsive email
was fraudulent and sent by the individuals perpetuating the
fraud. Claimant also showed another invoice to the president
prior to issuing an electronic payment in response to a payment
request that she did not know was fraudulent. In addition, after
the fraudulent email scam was discovered and it was learned that
claimant's email account was compromised, she assisted with the
                              -3-                  522780

employer's investigation of this incident. Inasmuch as the Board
is the final arbiter of factual issues and credibility, it was
entitled to credit claimant's testimony that she was deceived by
the scam and unaware of the fraudulent nature of the payment and
invoice requests (see Matter of Suchocki [St. Joseph's R.C.
Church—Commissioner of Labor], 132 AD3d at 1223; Matter of Lee
[Cascades Tissue Group—Commissioner of Labor], 117 AD3d 1251,
1252 [2014]). Accordingly, while the record evidence could also
support a contrary conclusion, we find, under the circumstances
herein, that substantial evidence supports the Board's decision
that claimant's conduct did not rise to the level of
disqualifying misconduct and, thus, it will not be disturbed (see
Matter of Muniz [Mitarotonda Servs., Inc.—Commissioner of Labor],
140 AD3d at 1427-1428; Matter of Jensen [Victory State Bank–
Commissioner of Labor], 126 AD3d 1207, 1208 [2015]).

      Peters, P.J., McCarthy, Lynch, Mulvey and Aarons, JJ.,
concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
