                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     520848
________________________________

In the Matter of the Claim of
   HOWARD R. SCHWARTZ,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   June 6, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Clark, JJ.

                             __________


     Howard R. Schwartz, Bayside, appellant pro se.

      Eric T. Schneiderman, Attorney General, New York City (Dawn
A. Foshee of counsel), for respondent.

                             __________


      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed February 13, 2015, which ruled, among other
things, that claimant was ineligible to receive unemployment
insurance benefits because he was not totally unemployed.

      Claimant filed his initial claim for unemployment insurance
benefits on January 18, 2011. Shortly thereafter, he received an
unemployment insurance handbook advising him, among other things,
that he was required to report part-time work and that he would
be entitled to receive partial benefits if he worked less than
four days per week and earned less than $405 per week. While he
was collecting benefits, claimant worked part-time as a librarian
at a local college during the fall and spring semesters. He
began working in this position in February 2011 and continued to
do so for approximately three years. During this time, he
continued to receive benefits based on certifications that he had
made both over the telephone and through the Internet.
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      The Department of Labor issued initial and revised
determinations, covering four separate time periods while
claimant worked at the college, finding that he was ineligible to
receive benefits because he was not totally unemployed and
charging him with recoverable overpayments and forfeiture
penalties based on his willful misrepresentations to obtain
benefits. Following extended proceedings, these determinations
were ultimately sustained by an Administrative Law Judge. On
appeal, the Unemployment Insurance Appeal Board upheld the
Administrative Law Judge's decisions covering three of these time
periods and modified the decision covering the remaining time
period, but only with respect to the amount of the recoverable
overpayment. Claimant now appeals.

      Claimant challenges the Board's imposition of recoverable
overpayments that were based on its finding that he made willful
misrepresentations to obtain benefits. Specifically, claimant
contends that it was not clear from the handbook or the
certification process that the $405 per week earnings threshold
that rendered him ineligible to receive partial benefits was
based on gross earnings, as opposed to net earnings after taxes.
To the extent that he indicated when certifying for benefits that
he did not earn more than $405 per week, he maintains that this
was based on his misunderstanding that net earnings were
controlling and, therefore, it was an innocent mistake.
Significantly, however, the informational handbook received by
claimant clearly advised him, "You are not eligible to receive
benefits for any week in which you earn over $405 (gross wages)
regardless of the number of days worked" (emphasis added). In
addition, although the questions asked during the Internet
certification process did not specify gross or net earnings, the
ones posed during the telephone certification process referenced
gross earnings. Under these circumstances, the Board could
reasonably conclude that, by failing to accurately disclose his
weekly earnings during the time periods in question, claimant
made willful misrepresentations to obtain benefits (see Matter of
Casiano [Commissioner of Labor], 131 AD3d 1306, 1307 [2015];
Matter of Nebel [Commissioner of Labor], 108 AD3d 1007, 1008
[2013]). Therefore, we decline to disturb the Board's decisions.
To the extent that claimant's other contentions are properly
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before us, they have been examined and found to lack merit.

      Peters, P.J., McCarthy, Egan Jr., Lynch and Clark, JJ.,
concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
