                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522875
________________________________

In the Matter of the Claim of
   JOHN J. KELLY III,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

Before:   McCarthy, J.P., Garry, Devine, Clark and Aarons, JJ.

                             __________


     John J. Kelly III, Amherst, appellant pro se.

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

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 15, 2015, which ruled that claimant was
ineligible to receive unemployment insurance benefits because he
failed to file a valid original claim.

      Claimant filed a claim for unemployment insurance benefits,
effective January 5, 2015, that was denied on the basis that he
did not meet the requirements for filing a valid original claim.
Ultimately, the Unemployment Insurance Appeal Board upheld that
determination. Claimant now appeals.

      Substantial evidence in the record supports the Board's
decision, and we affirm. In order to file a valid claim for
unemployment insurance benefits, claimant was required to show
that he earned "remuneration of one and one-half times the high
calendar quarter earnings within the base period" (Labor Law
§ 527 [1] [d]; [2] [a]; see Matter of Lingshan Li [Commissioner
                               -2-                522875

of Labor], 122 AD3d 1224, 1225 [2014]; Matter of Chernavsky
[Commissioner of Labor], 76 AD3d 739, 740 [2010]). The record
establishes that claimant earned wages of $9,240 for the high
calendar quarter during both the base period and alternate base
period.1 As claimant's wages for the other three quarters did
not equal or exceed $4,620 for either the base period or
alternate base period, claimant's total earnings did not equal or
exceed 1½ times his high calendar quarter earnings (see Labor Law
§§ 520, 527).

      Claimant contends that certain of his wages should have
been credited in the quarter that he actually performed the work
instead of in the high calendar quarter in which he was paid.
However, "[r]emuneration is deemed to have been earned on the
date of payment" (Matter of Lingshan Li [Commissioner of Labor],
122 AD3d at 1225; see Matter of Rodriguez [New York City Dept. of
Educ.—Commissioner of Labor], 24 AD3d 934, 934 [2005]). Further,
as the State University of New York, claimant's employer, is
exempt from the provisions of Labor Law § 191 (see Labor Law
§ 190 [3]; Mancuso v Crew, 255 AD2d 295, 296 [1998]), his
employer's use of a payroll lag was not in violation of Labor Law
§ 191 (1) (a) and does not render claimant eligible for
unemployment insurance benefits. Accordingly, substantial
evidence supports the Board's finding that claimant was unable to
file a valid original claim under the base or alternate base
periods (see Matter of Lingshan Li [Commissioner of Labor], 122
AD3d at 1225; Matter of Chernavsky [Commissioner of Labor], 76
AD3d at 740).

      McCarthy, J.P., Garry, Devine, Clark and Aarons, JJ.,
concur.




     1
        Although claimant was credited with wages of $16,201.28
for his high calendar quarter for both the base and alternate
periods, that amount was capped at $9,240 (see Labor Law § 527
[1], [2]).
                        -3-                  522875

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
