                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 5, 2015                   518801
________________________________

In the Matter of the Claim of
   NEAL HART,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

Before:   Garry, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Neal Hart, Fulton, appellant pro se.

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

                             __________


      Appeal from two decisions of the Unemployment Insurance
Appeal Board, filed December 17, 2013, as superceded by decisions
filed September 18, 2014, which ruled, among other things, that
claimant was ineligible to receive unemployment insurance
benefits because he was not available for employment.

      Claimant filed a claim for unemployment insurance benefits
on January 1, 2013, with an effective date of December 31, 2012.
In two decisions filed December 17, 2013, the Unemployment
Insurance Appeal Board determined that claimant was ineligible to
receive benefits for a certain time period because he was not
available for work due to his incarceration. The Board further
found that claimant had made a willful misrepresentation to
obtain benefits, charged him with a recoverable overpayment and
imposed a forfeiture penalty. The Board subsequently granted an
application by the Commissioner of Labor to reopen the Board's
decisions and, in two decisions filed September 18, 2014, the
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Board rescinded its prior decisions and sustained the finding of
willful misrepresentation, but modified the penalty imposed.
Claimant appeals.

      Initially, as claimant is aggrieved by the Board's
September 2014 decisions "in essentially the same manner as [he]
was by the appealed-from decision[s]," we will consider the
merits of his arguments despite his failure to appeal from the
2014 decisions (Matter of McCauley [Commissioner of Labor], 104
AD3d 973, 973-974 [2013] [internal quotation marks and citation
omitted]; accord Matter of Fernandez [Watkins–Commissioner of
Labor], 102 AD3d 1020, 1021 [2013]). Claimant does not dispute
the charge of a recoverable overpayment, but asserts that he did
not make a willful misrepresentation to obtain benefits.
"Whether a claimant ha[s] made a willful misrepresentation to
obtain benefits is a factual issue for the Board to resolve and
[such decision] will be upheld if supported by substantial
evidence" (Matter of Giacalone [Commissioner of Labor], 120 AD3d
1519, 1520 [2014] [citation omitted]).

      Here, the Board determined that, during two weeks of
claimant's incarceration, a person from his household used his
personal identification number (hereinafter PIN) to certify his
eligibility for benefits. The Board concluded that "there is no
reason not to accept" as credible claimant's contention that he
did not authorize anyone to certify for him while he was
incarcerated. The Board nonetheless determined that, because
claimant kept his PIN in an unsecured place, the use of his PIN
to certify that he was available for work was attributable to
claimant. We are unpersuaded by this reasoning. "A willful
false statement or misrepresentation is one which was made
knowingly, intentionally or deliberately" (Matter of Brown
[Commissioner of Labor], 115 AD3d 1108, 1109 [2014] [internal
quotation marks and citations omitted]; accord Matter of Barbera
[Commissioner of Labor], 28 AD3d 973, 974-975 [2006]). In light
of the Board's conclusion that claimant did not authorize anyone
to use his PIN, he did not knowingly, intentionally or
deliberately make a false statement to obtain benefits. Thus,
the Board's determination that claimant made a willful
misrepresentation is not supported by substantial evidence and
its decisions must be reversed to said extent (see generally
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Matter of Mtu [Commissioner of Labor], 16 AD3d 883, 884 [2005]).

     Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.



      ORDERED that the decisions are modified, without costs, by
reversing so much thereof as found a willful misrepresentation to
obtain benefits and ordered a forfeiture of effective days;
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision;
and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
