                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 17, 2015                   519809
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In the Matter of the Claim of
   EDWINA M. RIVERA,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
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Calendar Date:   August 10, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


     Edwina M. Rivera, New York City, 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 December 11, 2012, which charged claimant with a
recoverable overpayment of emergency unemployment compensation
and federal additional compensation benefits.

      After claimant stopped working for the employer as a
patient services coordinator, she applied for and received
unemployment insurance benefits. The employer objected to
claimant's receipt of benefits and, following extended
proceedings, the Unemployment Insurance Appeal Board ruled that
she was disqualified from receiving benefits because she
voluntarily left her employment without good cause. Claimant did
not appeal from this decision.

      Thereafter, the Department of Labor issued an initial
determination charging claimant with a recoverable overpayment of
benefits, specifically $12,925 in emergency unemployment
                              -2-                  519809

compensation benefits (see Pub L 110-252, tit IV § 4001 et seq.,
122 US Stat 2323) and $550 in federal additional compensation
benefits (see 26 USC § 3304), that she had received prior to her
disqualification. Following further proceedings, the Board
eventually sustained this determination and claimant now appeals.

      We affirm. Claimant maintains that she should not be
liable for a recoverable overpayment of benefits because she did
not voluntarily leave her employment, but was terminated without
good cause. However, inasmuch as she did not appeal the Board's
decision disqualifying her from receiving benefits on the basis
of her voluntary separation, she is bound by that determination
and may not relitigate this issue anew (see Matter of Shamilov
[Commissioner of Labor], 68 AD3d 1293, 1294 [2009]). Given that
claimant was not entitled to receive such benefits, she is
required to repay them unless the overpayment was through no
fault of her own and "'equity and good conscience' militate in
favor of a waiver of repayment" (Matter of Silver [Commissioner
of Labor], 84 AD3d 1634, 1635 [2011], quoting Pub L 110-252, tit
IV § 4005 [b], 122 US Stat 2323; see Matter of Matusic
[Commissioner of Labor], 102 AD3d 1029 [2013]). Claimant,
however, has not applied for a waiver of repayment and there is
no evidence in the record establishing that she would be entitled
to one. Therefore, we find no basis to disturb the Board's
decision.

     Lahtinen, J.P., Garry, Rose and Devine, JJ., concur.


     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
