In re the Claim of Miller

Apr 24, 2008
Versions:50 A.D.3d 1432
857 N.Y.S.2d 304

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 17, 2007, which denied claimant’s application to reopen and reconsider a prior decision.

Claimant worked for nearly four years as a maintenance person for the employer until he was discharged in February 2006 after it was discovered that he had falsified his employ*1433ment applications by omitting information regarding his criminal convictions. Following various proceedings, in a decision filed May 3, 2007 the Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits on the basis that he lost his employment through misconduct and, by a decision upon reconsideration filed July 18, 2007, adhered to that decision. Claimant’s second application to reopen and reconsider was denied by the Board in August 2007. It is from that decision that claimant appeals, challenging the merits of the underlying determination denying his application for benefits.

Initially, because claimant’s applications for reopening and reconsideration were made in a timely manner, the merits of the underlying determination are properly before this Court (see Matter of Yastrzemski [Commissioner of Labor], 32 AD3d 1123 [2006], lv dismissed 8 NY3d 896 [2007]). As for the merits, inasmuch as even the inadvertent falsification or omission of information from one’s employment application can constitute disqualifying misconduct (see Matter of Dockal [Commissioner of Labor], 34 AD3d 1081, 1081 [2006]; Matter of Redden [Commissioner of Labor], 277 AD2d 629, 630 [2000]), substantial evidence supports the determination that claimant is disqualified from receiving unemployment insurance benefits on that basis. Claimant’s testimony that he was told by a supervisor how to answer the question regarding his criminal convictions, which was contradicted by the employer, presented a credibility issue for the Board to resolve (see Matter of White [Commissioner of Labor], 48 AD3d 854, 855 [2008]).

Cardona, EJ., Mercure, Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the decision is affirmed, without costs.