                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 29, 2016                   521737
________________________________

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


Calendar Date:   September 13, 2016

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

                             __________


     Jennifer Roberson, Jamaica, appellant pro se.

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

                             __________


McCarthy, J.P.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed December 1, 2014, which ruled, among other
things, that claimant was disqualified from receiving
unemployment insurance benefits because she voluntarily left her
employment without good cause.

      In November 2012, claimant filed a claim for unemployment
insurance benefits and began receiving those benefits as well as
federally funded emergency unemployment compensation (see Pub L
110-252, tit IV, § 4001 et seq., 122 US Stat 2323). Thereafter,
the Department of Labor issued initial determinations that found
claimant ineligible to receive unemployment insurance benefits
because she was not totally unemployed during the time that she
received benefits and disqualified her from receiving
unemployment insurance benefits because she had left that
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employment without good cause. The determinations charged her
with a recoverable overpayment of the different benefits that she
received and also imposed a forfeiture and civil penalties for
her willful misrepresentations pursuant to Labor Law § 594.
Following a hearing, an Administrative Law Judge sustained the
Department's initial determinations. Ultimately, the
Unemployment Insurance Appeal Board affirmed, finding that
claimant was not totally unemployed while receiving benefits,
that she had voluntarily left that employment without good cause
and that the recoverable overpayments and penalties imposed were
appropriate. Claimant now appeals.

      We affirm. Initially, "Labor Law § 591 (1) limits
eligibility for benefits to those claimants who are 'totally
unemployed'" (Matter of Connerton [Thousand Is. Cent. Sch.
Dist.—Commissioner of Labor], 132 AD3d 1210, 1210-1211 [2015],
quoting Matter of Alm [Commissioner of Labor], 302 AD2d 777, 778
[2003]), which is defined as "the total lack of any employment on
any day" (Labor Law § 522; see Matter of Brown [Erie 2
Chautauqua-Cattaraugus Bd. of Coop. Educ. Servs.—Commissioner of
Labor], 133 AD3d 1146, 1146 [2015]; Matter of Smith [Commissioner
of Labor], 8 AD3d 744, 745 [2004]). "[W]hether a claimant is
totally unemployed for purposes of receiving unemployment
insurance benefits is a factual question for the Board and its
determination will be upheld if supported by substantial
evidence" (Matter of Robinson [Commissioner of Labor], 125 AD3d
1038, 1039 [2015], lv dismissed 26 NY3d 953 [2015]; see Matter of
Nebel [Commissioner of Labor], 108 AD3d 1007, 1008 [2013]). The
record evidence adduced at the hearing, including claimant's own
testimony, establishes that, while receiving unemployment
insurance benefits, she worked as a line worker at a retail store
on January 22, 23 and 24, 2013. Accordingly, substantial
evidence supports the decision of the Board that claimant was not
totally unemployed on those days and therefore ineligible to
receive unemployment insurance benefits during that time (see
Matter of Casiano [Commissioner of Labor], 131 AD3d 1306, 1307
[2015]; Matter of Hurley [Commissioner of Labor], 67 AD3d 1153,
1154 [2009]).

      Similarly, substantial evidence supports the Board's
finding that claimant was employed and left that employment
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without good cause. Whether a claimant has good cause to leave
his or her employment so as to qualify for unemployment insurance
benefits is a factual determination to be made by the Board, and
its decision will not be disturbed when supported by substantial
evidence" (Matter of Sciortino [Salina Free Lib.—Commissioner of
Labor], 129 AD3d 1415, 1416 [2015]; see Matter of Malone
[Commissioner of Labor], 117 AD3d 1306, 1306 [2014]). "Moreover,
'[i]ssues of witness credibility, the evaluation of evidence and
the inferences to be drawn therefrom are within the exclusive
province of the Board'" (Matter of Malone [Commissioner of
Labor], 117 AD3d 1306, 1306 [2014], quoting Matter of Lowman
[Commissioner of Labor], 101 AD3d 1282, 1283 [2012]). It is not
disputed that, after working at a retail store on January 22, 23
and 24, 2013, claimant informed the store's manager by telephone
that she would no longer work there. In January 2014, the
Department sent claimant a questionnaire requesting information
regarding the reasons why she had left her employment at the
retail store; claimant failed to respond to the Department's
request for information (see 12 NYCRR 473.3 [c]; Matter of Ianni
[Catherwood], 15 AD2d 593, 593 [1961]). Moreover, although
claimant testified that she had a medical condition in January
2013 that limited her ability to perform the job duties required
of her at the retail store, the Board credited the evidence
indicating that she did not notify either her employer or the
Department of her purported medical condition at that time (see
Matter of Estrada [Commissioner of Labor], 261 AD2d 760, 760
[1999]; Matter of Wesley [Commissioner of Labor], 254 AD2d 593,
593 [1998]; cf. Matter of Brewton [Commissioner of Labor], 118
AD3d 1049, 1051 [2014]).

      As for the Board's finding that claimant made willful
misrepresentations to obtain benefits, at the time that claimant
filed her claim, she was advised by a Department representative
that she was required to read all information in a handbook that
she received from the Department regarding the receipt of
benefits. Inasmuch as claimant certified for benefits for the
week ending January 26, 2013 and did not inform the Department at
that time that she had worked in the retail store for three days
or that she had left that employment, we see no reason to disturb
the Board's finding that she had made a willful misrepresentation
to obtain benefits subjecting her to recoverable overpayments as
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well as forfeiture and civil penalties (see Labor Law § 594;
Matter of Shuman [Commissioner of Labor], 135 AD3d 1284, 1285
[2016]; Matter of Casiano [Commissioner of Labor], 131 AD3d at
1307; Matter of Robinson [Commissioner of Labor], 125 AD3d at
1040).

     Garry, Devine, Clark and Mulvey, JJ., concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
