Thursday, February 28, 2013


Recently, I received an email from a bankruptcy firm Shenwick & Associates regarding a blog they wrote entitled "Covet Thy Neighbor's Apartment," which discussed the attempts of Chapter 7 Bankruptcy Trustees to assume and assign a debtor's rent-stabilized and rent-controlled lease in co-op/condo converted buildings for the benefit of creditors.

Here is a link to the blog:

Wednesday, February 27, 2013


A common issue with respect to employee's right to speak is addressed in Mailed and Filed: DECEMBER 11, 2012 IN THE MATTER OF: Appeal Board No. 567018:

"OPINION: The credible evidence establishes that the claimant was discharged on April 9, 2012, because he used nicknames for his co-workers that were construed asdefamatory, offensive, and harassing. It has been held that offensive behavior in theworkplace, including the utterance of religious or ethnic slurs, is conduct that isdetrimental to the employer's interest and can constitute misconduct, (Matter of Selzer,241 AD2d 743). Even though the employer has a personnel policy prohibiting unlawfulor unwelcomed harassment, we note that the employees in the maintenance departmentcommonly used the nicknames to describe coworkers. The board has previously foundno misconduct where profanity or offensive language was commonly used in theworkplace and generally accepted, even though there was policy prohibiting suchconduct (AB 544101). While the employer has drawn a distinction between the claimant'sstatements and another employee's use of a discriminatory word, the claimant was noton notice that he would be terminated for such behavior. As such, the claimant could nothave reasonably anticipated that using nicknames would place his job in jeopardy or thathe would be discharged. Furthermore, the employer witness did not immediately reportthe incident to the employer. Therefore, the conduct was not so egregious that theclaimant needed to be immediately removed from his employment. Under these circumstances, the claimant did not engage in misconduct and so his employment endedunder non-disqualifying conditions.

Tuesday, February 26, 2013


Here is the opinion in Mailed and Filed: AUGUST 05, 2011 IN THE MATTER OF: Appeal Board No. 554048:

"OPINION: The credible evidence establishes that the employer fired the claimant for sending a co-worker/friend e-mails that the employer judged to be derogatory and insubordinate. The employer had previously warned the claimant about inappropriate workplace interactions and insubordination. Notably, however, these warnings involved inappropriate verbal interactions and did not involve inappropriate usage of the employer's e-mail system. The employer did not warn the claimant regarding her e-mail communications until approximately one week before her February 23, 2010 firing. Thus,we calculate that the warning regarding e-mails was issued on or about February 16,2010. The record shows that the claimant sent her last offending e-mail on February 12,2010. After receiving the employer's warning, the claimant apologized for any past offenses she may have committed, and she subsequently sent no further inappropriate e-mails. Thus, the record shows that the claimant had not received any prior relevant warnings at the time when she sent the e-mails now at issue. As a result, the claimant was not on notice that sending these e-mails could jeopardize her employment.Accordingly, we conclude that the claimant's actions do not constitute disqualifying misconduct for purposes of the Unemployment Insurance Law and the claimant is entitled to benefits. It logically follows, and we further conclude, that the claimant did not receive an overpayment of benefits."

Monday, February 25, 2013


Today, I will be one of the volunteer lawyers.

Nassau County residents whose homes were damaged by superstorm Sandy can consult with volunteer attorneys and representatives from federal agencies at a clinic today. The Nassau County Bar Association will offer the clinic on Monday from 3 to 6 p.m. at its headquarters at 15th and West streets in Mineola.

See this link:

Friday, February 22, 2013


Here is another interesting case - Mailed and Filed: AUGUST 05, 2011 IN THE MATTER OF: Appeal Board No. 554048:

 "FINDINGS OF FACT: The claimant worked for seven years at a health plan, ending with the title of recertification representative. In the course of investigating another employee, the employer discovered e-mails between that employee and the claimant which the employer found objectionable. The other employee was a close friend of the claimant's both at work and outside of work. The claimant's e-mails to her co-worker involved the claimant's contention that a member of the employer's Human Resources staff had referred her to the employer's Employee Assistance Program and was requiring her to attend anger management counseling that she didn't need, and that the therapist was producing a report for the Human Resources staffer to express the therapist's opinion that the claimant didn't need anger management counseling. The claimant also referred to the Human Resources staffer using a Spanish word that the employer understood to mean a filthy and revolting woman. The claimant sent the last of these objectionable e-mails on the morning of February 12, 2010. Approximately one week before the claimant was discharged, the employer sent an e-mail warning the claimant and approximately six other employees against sending personal or derogatory e-mails. The claimant apologized for any offense that she might have committed. The employer had previously issued a final warning to the claimant dated January 22,2010 based on her participation in a shouting match with another employee within ear shot of other co-workers, which disrupted the workplace and undermined the employer's maintenance of a pleasant, safe work environment. The warning also referred to a recent counseling for insubordination based on "inappropriate, challenging behavior towards" management. The final warning did not specifically mention e-mails.The employer fired the claimant on February 23, 2010 for her use of the employer's e-mail system to send messages that were derogatory and insubordinate in nature. The employer found that the claimant misrepresented the Employee Assistance Program by stating that the therapist was going to report to the employer on the claimant's therapy needs. The Employee Assistance Program is provided by an outside company, and not by the employer directly. The Human Resources staffer understands that the Employee Assistance Program therapist only advises the employer that a claimant is  "incompliance" or "not in compliance" with counseling, with no further elaboration. Misrepresentation of the Employee Assistance Program process could cause employees to question whether their participation in this program would be confidential as theemployer promised. The Human Resources staffer also found the claimant's use of the derogatory Spanish word in reference to herself to be insubordinate. The misrepresentation of the Employee Assistance Program was the communication that the employer found most objectionable.After she was fired, the claimant filed a claim for benefits over the internet and certified that she lost her job when she was "discharged" by the employer. The Department of Labor's website did not offer the claimant any way of explaining that she was "fired."From the week ending March 14, 2010 through the week ending June 13, 2010, theclaimant received $345 in regular benefits and $25 in FAC benefits each week.

Thursday, February 21, 2013


The opinion in Appeal Board No. 555846 was as follows:

"OPINION: The credible evidence establishes that the claimant was discharged on April 29, 2010, because the employer believed she had violated its policy on confidential information. I find that the terms of the "annual" statement of compliance that the claimant had signed almost two years before her discharge were too vague to have placed her on adequate or reasonable notice that her conduct in discussing her subordinate's work-related issues with his wife, who was also an employee, was either prohibited by the policy or would lead to her discharge. Although the claimant may have performed poorly, and exercised poor judgment, in her capacity as a supervisor, this does not rise to the level of  misconduct for unemployment insurance purposes. Accordingly, I conclude that the claimant was not separated under disqualifying circumstances, although an employer may discharge an employee for any lawful reason. As the claimant was not disqualified, she was entitled to receive benefits and was not overpaid. Regarding the allegation of wilful misrepresentation to obtain benefits, the record does not reflect the choices the claimant was presented as to the reason of separation at the time she filed her claim. Accordingly, I am unable to conclude that the claimant made a knowing, intentional, or deliberate false statement to obtain benefits in selecting inability to meet performance or production standards. Moreover, even crediting the employer's contention that the claimant was told she was discharged for breach of confidentiality and inappropriate communications, her choice would not have been unreasonable under the circumstances, considering that that the claimant had at some point been counseled about poor performance for inappropriate communications."

Wednesday, February 20, 2013


Also noteworthy is Mailed and Filed: NOVEMBER 04, 2011 IN THE MATTER OF: Appeal Board No. 555846. The facts were as follows:

"FINDINGS OF FACT: The claimant worked as an environmental services supervisor at a hospital for about two and a half years. On July 11, 2008, she signed the employer's"Annual Statement of Compliance," which stated under the heading "Confidentiality Agreement" that the signatory understood that she could not repeat information that she may hear at work or in meetings, and that all records of the employer are private and confidential whether patient or business related.

The claimant believed that one of her subordinates had performance problems. She had also received some complaints concerning his personal hygiene. She provided him with a copy of a performance audit regarding some of these deficiencies, but she was not confident that he would take the necessary steps to improve his performance. The claimant was too embarrassed to confront this employee concerning his personal hygiene. This employee's wife also worked for the employer, as a unit secretary. The claimant felt she had a rapport with her subordinate's wife. The claimant approached her at work and suggested that she, the wife, prepare some checklists for her husband, for example on how to properly clean a patient room, to help him improve his performance. She also at some point told the employee's wife about the complaints regarding his hygiene. As a result, the employee and his wife complained to management about the claimant. On April 29, 2010, the employer discharged the claimant, because it concluded she had breached its confidentiality policy and had engaged in "inappropriate communications." The claimant had at some point been counseled for her poor performance as a supervisor regarding poor or inappropriate communications. The employer later sent the claimant a discharge letter that did not provide a specific reasonfor discharge."

Tuesday, February 19, 2013


Noteworthy is the following Appeal Board case:

Mailed and Filed: OCTOBER 17, 2008 IN THE MATTER OF: Appeal Board No. 542073

"OPINION: The credible evidence establishes that the claimant occasionally engaged in salary discussions with other managers. However, the record fails to establish that the claimant obtained salary information for other employees in a nefarious manner. In reaching this conclusion, we find it significant that the employer's human resources vice president admitted that she never specifically questioned the claimant about how he obtained salary information on other employees. In addition, the record also fails to establish that the claimant knew or should have known that he could be discharged for having other employees unlock employer offices during his shift so he could procure supplies. Nor are we persuaded that the claimant's private discussions with fellow managers about salaries constituted a violation of employer rules. However, even if these discussions were technically a violation of employer rules, it is well established that not all such violations constitute misconduct. (See: Matter of Vassallo, 125 AD2d 771)Accordingly, we conclude that while claimant may have demonstrated poor judgment by engaging in salary discussions with other employees, his behavior does not rise to the level of misconduct for purposes of Unemployment Insurance."

Friday, February 15, 2013


Here is an Appellate Division, 3rd Department case on this issue:


125 A.D.2d 771 (1986)

In the Matter of the Claim of Deborah A. Vassallo, Respondent. Upstate Federal Credit Union, Appellant. Lillian Roberts, as Commissioner of Labor, Respondent

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 4, 1986

Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.

Levine, J.
Claimant was discharged from her position as a teller with the Upstate Federal Credit Union (Credit Union) after allegedly disclosing confidential information to a third party in contravention of the Credit Union's rules. The local unemployment insurance office initially ruled that claimant was disqualified from receiving unemployment benefits on the ground that she had lost her employment as a result of misconduct in connection therewith. That determination was sustained by an Administrative Law Judge (ALJ) after a hearing. The Unemployment Insurance Appeal Board reversed the ALJ and held
[ 125 A.D.2d 772 ]

that, although claimant had disclosed confidential information in contravention of her employer's work rules, her conduct did not rise to the level of disqualifying misconduct. This appeal by the employer ensued. We now affirm.
Testimony adduced at the hearing before the ALJ established that a Credit Union member named Platt applied for a loan at the office in which claimant was employed and requested that all information about the loan be held in strict confidence. According to the Credit Union, Platt intended to use the loan proceeds to set her daughter up in business but wanted her daughter to believe that the funds consisted of accumulated savings. Claimant was acquainted with Platt, her daughter, and her daughter's employer, the proprietor of a manicure shop, having met and associated with them through her biweekly manicure appointments. Claimant testified that as a result of that acquaintance, it was Platt's habit to conduct her Credit Union business at claimant's teller window and that Platt had in fact cashed her loan check with claimant. When doing so, according to claimant, Platt informed claimant that she had obtained the loan for her daughter and then engaged in a lengthy conversation with claimant regarding the particulars of the proposed business venture.
Subsequently, Platt complained to the Credit Union that claimant had revealed to her daughter and to her daughter's employer the existence and purpose of the loan. Claimant was discharged as a result. Credit Union representatives offered proof that claimant had previously been given copies of a work rule requiring that employees keep all Credit Union member transactions confidential and that claimant had admitted to having discussed the loan with Platt's daughter. Claimant contended at the hearing that she only became aware of the loan through her conversation with Platt and was of the impression that it was not intended to be kept confidential. Additionally, she testified that although she had discussed the proposed new business with Platt's daughter, she did not inform either her or her employer of the loan. Claimant submitted into evidence a statement purportedly signed by the daughter's employer which stated that claimant had not discussed the loan with her.
Given the foregoing, there was substantial evidence to support the Board's determination that claimant could reasonably have believed that Platt did not desire to keep the existence of her loan confidential and that claimant's conduct in discussing the loan with Platt's daughter did not constitute misconduct. Not every technical violation of a work rule which results in
[ 125 A.D.2d 773 ]

an employee's termination rises to the level of misconduct (see, Labor Law § 593 [3]; Matter of Tarver [Ross], 64 A.D.2d 760, 761). Under the circumstances of Platt's disclosure of the existence of the loan to claimant and claimant's prior acquaintance and relationship with Platt and her daughter, claimant's conduct here could rationally have been viewed as a good-faith error in judgment rather than disqualifying misconduct (see, Matter of Figueroa [Levine], 50 A.D.2d 998).
Decision affirmed, without costs."

Thursday, February 14, 2013


A matter came to me for my review. I was not retained but the topic interested me. Unemployment Insurance benefits was denied to a claimant on the grounds that claimant violated company policy by disclosing confidential information to another employee. Basically, claimant, a non supervisor, told fellow EE A that claimant heard that fellow EE B was the subject of an investigation.

On the surface, it appeared to be office gossip but claimant was warned on a previous occassion not to "gossip" when claimant told fellow EEs that EE C was in the hospital.

Wednesday, February 13, 2013


I am honored to be one of the judges this afternoon for the 2013 New York State 2013 High School Mock Trial Tournament at Nassau County Supreme Court.

Tuesday, February 12, 2013


In determining what is a misstatement, whether deemed willful or fraud, there is a distinction between misstatements of fact and law.
The issue of fraud typically comes into play when a claimant certifies eligibility for unemployment insurance when in fact the claimant is employed.
In the following Court of Appeals case,  the appeals are limited to the following issues: (1) did the claimants make false statements when they stated that they were unemployed and (2) did they act wilfully. In order to sustain a finding of wilfulness the evidence must show that the claimants knew that their actions constituted employment.
57 N.Y.2d 116 (1982)

In the Matter of the Claim of Grace Valvo, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
In the Matter of the Claim of Debra Loll, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
In the Matter of the Claim of Josephine Polvino, Respondent. Philip Ross, as Industrial Commissioner, Appellant.

Court of Appeals of the State of New York.
Decided September 14, 1982.
Robert Abrams, Attorney-General (Iris A. Steel of counsel), for appellant in the first, second and third above-entitled matters.
Stephen S. Joy for respondent in the first above-entitled matter.
Andrew M. Rothstein for respondent in the second above-entitled matter.
Paul M. Aloi for respondent in the third above-entitled matter.
Chief Judge COOKE and Judges JASEN, JONES, FUCHSBERG and MEYER concur; Judge GABRIELLI taking no part.
119*119WACHTLER, J.
In these three cases recipients of unemployment insurance failed to report that they had performed occasional services of a business nature for friends or family members during periods of claimed unemployment. The agency found that these services constituted employment, that claimants had therefore made false statements of unemployment and that the statements were wilfully made. In each case a penalty was imposed and the claimants were also directed to repay the benefits received.
On three separate appeals the Appellate Division, Third Department, modified by annulling the penalty and repayment provisions after concluding that proof of the element of wilfulness was lacking. The Appellate Division also rejected the agency's contention that a portion of the benefits are recoverable pursuant to subdivision 4 of section 597 of the Labor Law on the theory that claimant had made a false statement unintentionally. The agency appeals on the basis of the modifications.[1]


Claimant, Grace Valvo, is employed by Tambe Oil, which delivers heating oil to homes and a few businesses during the winter months. From late spring to early fall it is dormant. The corporation is owned and operated by Anthony Tambe, the father-in-law of one of the claimant's close friends. Mr. Tambe was formerly employed as a truck driver. He went into business for himself in September, 1976. The business presently consists of a truck and a garage with a small office in the garage. The owner personally delivers the oil, and in the beginning also attended to the clerical matters. However, he had so much difficulty balancing his checking account that his credit rating was soon impaired and he was on the verge of going out of business. When he mentioned this to his daughter in claimant's presence, claimant volunteered to help. From October, 1976 to November, 1977 claimant wrote his checks and balanced the checkbook as a favor, without compensation. During this period she was receiving unemployment benefits.
120*120In November, 1977 Mr. Tambe hired claimant as a secretary to write checks, send out the bills, record all financial transactions and answer the phone at the office. In this capacity she worked 40 hours a week at the office. During the summer months in 1978 and 1979 she was officially laid off and collected unemployment benefits. However, if a bill had to be paid for monthly utilities or outstanding loans Mr. Tambe would call claimant and ask her to write a check. He would then pick it up at her home, sign it and mail it. Claimant received no compensation for these services.
In June, 1980 the agency informed claimant that her uncompensated check-writing activities constituted employment under the Labor Law,[2] that she had therefore made false statements when she claimed to be unemployed during the off-season, and also during the period she wrote the company's checks on a volunteer basis before she was hired in November, 1977. It further concluded that the statement had been wilfully made and that claimant should therefore be penalized by forfeiting 664 days of future eligibility and must also repay all benefits received in the amount of $6,019.
Claimant requested a hearing which was held in July, 1980. After the hearing the administrative law judge concluded that the initial determination assessing a penalty and requiring repayment of benefits should be set aside primarily because there was no evidence of fraud or wilful misrepresentation on claimant's part. He stated: "While claimant did perform check writing functions for this employer during the period prior to the time when she went on the payroll in November of 1977 and also during the off season of 1978, claimant could reasonably have believed that there was no employer employee relationship since she was not reporting to the employer's establishment during the periods when she was writing such checks and she was performing no other services. This is especially the case in the period prior to her going on the 121*121 payroll in November of 1977. With respect to the off season of 1978, claimant's activities were so substantially different from her regular work assignments that even here she could reasonably have believed that she was not performing as an employee * * * In addition, she was clearly not self employed and since the amount of time required to write the checks was minimal the activity of writing the checks as such did not establish a lack of total unemployment."
The appeal board reversed the decision of the administrative law judge and reinstated the initial determination. The board summarily concluded that claimant's weekly certifications of unemployment "were false and known by her to be false when made" and therefore constituted wilful misrepresentations. The board also found that claimant's statements were false in fact because "claimant performed substantial services for her employer of a similar nature to those she performed when concededly in employment".
Claimant appealed to the Appellate Division to have the board's determination set aside. In support of its determination the agency claimed that there was substantial evidence of wilfulness and that it was therefore authorized to impose the penalty and require repayment pursuant to section 594 of the Labor Law.[3] In the alternative the agency urged that pursuant to subdivisions 3 and 4 of section 597 of the Labor Law, it could recover a portion of the benefits (i.e., those paid during the year preceding discovery of the overpayment) whenever the claimant has made a false statement of unemployment even unintentionally.[4]
122*122The Appellate Division unanimously modified by reversing that portion of the determination which imposed the penalty and ordered repayment of benefits. The court accepted the board's determination that claimant's check-writing activities constituted employment but found nothing in the record to support the board's determination of wilfulness. With respect to the board's right to recover a portion of the benefits pursuant to subdivisions 3 and 4 of section 597 of the Labor Law on the theory that she had made a false statement the court held that "the term `false statement' in the statute refers to a false factual statement" and not to an erroneous conclusion of law. (83 AD2d, at p 346.) In this case the court found that "the requirement that claimant weekly `report and certify as to his unemployment' (12 NYCRR 473.2 [a]) obligated claimant to draw a legal conclusion — whether her uncompensated check-writing activities constituted employment within the meaning of the Labor Law — rather than provide factual data". (83 AD2d, at p 347.) The court distinguished our recent decision in Matter of Maguire (Ross) (54 N.Y.2d 965) on the ground that the petitioner's activities in that case obviously constituted employment.


In March, 1978 claimant, Debra Loll, was laid off from her job as a clerk cashier at Stop & Go in Elmira. She was rehired in September of that year. In the interim she collected unemployment benefits. At an unemployment interview on July 7, 1978 she had stated that she occasionally helped out at her father's drugstore, but received no compensation for these services. Toward the end of the month the agency sent her a letter warning her that any services performed for her father at his store would constitute employment even if she did not receive any compensation. On August 8, the manager of the unemployment 123*123 office who was a regular customer at the drugstore saw the claimant behind the counter.
In October the agency made an initial determination that petitioner was ineligible to receive benefits for two days out of each week during the period of claimed unemployment, representing the days she helped her family at the drugstore. Her weekly certifications of unemployment were characterized as false and wilful misrepresentations. As a result claimant was penalized 96 effective days and was directed to repay $564 representing the benefits she received on the days she was employed at her father's drugstore.
Claimant demanded a hearing which was held in February of 1979. At the hearing she testified that she went to her father's store nearly every day during the period she claimed unemployment, so that she could borrow his car or have a family member babysit for her three-year-old son while she looked for a job. On occasion she would take care of a customer or deliver a prescription if her father or brother were busy or wanted to take a break. She usually only helped out for a few minutes one or two days a week during the evening or on a Saturday and on rare occasions worked for a few hours. These activities ceased after being warned of the consequences in July. However, she continued her daytime visits and during one of them might have assisted her family at the store for a few minutes because she had done so automatically throughout her life. She received no compensation for the help she provided at the store.
At the conclusion of the hearing the administrative law judge held that claimant's activities at her father's store constituted employment. He also stated that "the record is clear that the claimant was not candid with the local office and did not advise them of her activities". Thus he sustained the initial determinations. The appeal board affirmed adopting both the findings of fact and opinion of the administrative law judge.
The case was heard by the Appellate Division in November, 1980, a year before its decision in the Valvo case. In a brief memorandum the court held that the record supported 124*124 the board's finding that claimant had made false statements but not its finding of wilfulness. The court modified by reversing so much of the agency's determination as assessed a penalty of 96 effective days.
At the time of its decision in Valvo the Appellate Division granted reargument in this case. In another brief memorandum, relying upon Valvo, the court further modified by reversing so much of the agency's determination as directed claimant to repay benefits received.


From 1974 to 1977 claimant Josephine Polvino was intermittently employed by a small construction company owned and operated by her two sons, one of whom resides at home with his parents. The company does general construction work but specializes in paving driveways in the summer and removing snow in the winter. The company's office is located in a trailer on property where the equipment is stored. However, company business is frequently conducted at claimant's residence.
Claimant performed clerical duties at the office of a general and unskilled nature including answering phones, writing checks and keeping some company records. She was laid off and collected unemployment benefits on several occasions: March 4 to July 14, 1974; December 23, 1974 to June 13, 1976, and August 8, 1977 to May 14, 1978. According to claimant and her sons this was due to a lack of work. However during these periods she continued on occasion to answer phone calls from customers, write checks and keep some company records at her residence without compensation.
In March of 1979 the agency sent claimant a notice of initial determination stating that she had been found to be ineligible for unemployment benefits during the periods of claimed unemployment listed above because she had continued to perform "services for Polvino Construction Corporation". She was directed to make repayment in the amount of $8,834. The agency also imposed a penalty of 208 effective days for wilful misrepresentation "because you failed to divulge your association and activities for Polvino Construction Company".
125*125Claimant demanded a hearing at the conclusion of which the administrative law judge sustained the initial determination. He noted that claimant had been employed by her sons' company where the services she performed were somewhat vague. He stated: "In a situation where a claimant is employed by a closely held corporation whose principal officers and shareholders are related to her, the closest scrutiny must be given to a claim for benefits. In the instant case the pattern of her claims over several years makes it appear obvious that the employer controlled her periods of employment. Because of the control exercised over the periods of her employment, the undersigned cannot accept claimant's eligibility for benefits during these several periods when, by her own admission, claimant performed some services for the corporation."
That decision was in turn affirmed by the appeal board which adopted the findings of fact and opinion of the administrative law judge.
The Appellate Division modified the agency's determination by reversing the penalty and repayment provisions. In its memorandum the court held that there was substantial evidence to support the board's determination that petitioner was unavailable for employment. The court also found no "reason for disturbing the board's determination that claimant was not totally unemployed". The court then stated: "We are of the opinion, however, that there is insufficient evidence to support the board's determination on the issue of wilfull misrepresentation. Claimant's activities did not obviously constitute employment as the situation was found to be in Matter of Maguire (Ross) (54 N.Y.2d 965, supra). Although claimant may be found to have been employed in the technical sense of the Labor Law, there is no evidence of wilfulness in her certifications to total unemployment on her weekly reports. Consequently, the imposition of a forfeiture of effective days and the recovery of overpayments pursuant to section 594 of the Labor Law are not warranted in the present case (see Matter of Valvo [Ross], supra; Matter of Smalt [Ross], 82 AD2d 958). In addition, under the circumstances presented herein, there may be no recovery of a portion of the benefits pursuant to 126*126 subdivision 4 of section 597 of the Labor Law (see Matter of Valvo [Ross], supra)." (85 AD2d, at p 807.)
The order of the Appellate Division should be affirmed in the first case (Valvo) and reversed in the other two (Loll and Polvino).
Initially we note that at this stage no one challenges the agency's determination that the petitioners' activities technically constitute employment within the meaning of the statute. The appeals are limited to the following issues: (1) did the petitioners make false statements when they stated that they were unemployed and (2) did they act wilfully. In addition the agency concedes that in order to sustain a finding of wilfulness the evidence must show that the petitioners knew that their actions constituted employment.
The problem is that the agency's interpretation of the statute defining employment (Labor Law, § 522) although rational, does not reflect the common understanding of employment. As a result laymen, particularly unskilled laymen who undoubtedly represent the majority of claimants for unemployment benefits, may not realize that occasionally helping a friend or relative may constitute employment even though they are not paid for it. The agency claims that its information booklet provides a kind of constructive notice when it states: "You are considered employed on any day when you work — even an hour or less — in self-employment, on a free lance basis, or for someone else. It makes no difference whether * * * you get paid for that day". The agency, however, has omitted the next sentence which states: "For example, work on a straight commission basis is employment even though you may not receive the commission until some time later or make no sale at all". This gloss leaves the impression that the term employment includes activities that are generally perceived as employment regardless of the technicalities.
The agency is on firmer ground when it relies on the facts of the particular cases. In the Polvino case, for instance, where the claimant worked for her sons, the evidence shows that she performed essentially the same limited services while allegedly unemployed as she did while 127*127 allegedly employed. The only significant difference is that she received unemployment benefits instead of wages. In addition, as the agency notes, her periods of unemployment were never satisfactorily explained. It was appropriate for the agency to closely scrutinize this situation as it did, because of the possibility that the periods of employment and unemployment were manipulated in order to claim unemployment benefits. Under the circumstances the agency could conclude that if she understood that the services she performed for her sons constituted employment when she was on their payroll, she also realized that they constituted employment when she was technically laid off.
The Loll case presents a more sympathetic situation but nevertheless there is substantial evidence to sustain the agency's finding that she acted wilfully. The evidence shows that she was warned that her services at her father's drugstore constituted employment. When, despite this warning, she was later observed behind the counter, the agency could reasonably infer that her activities throughout the period were not the result of ignorance of the law. Notably in this case she was not required to repay all benefits received but only those relating to the days on which she was actually working at the store.
In the Valvo case, on the other hand, there is nothing in the record from which it can be reasonably inferred that she realized that her writing of a few monthly checks during a long period of seasonal unemployment would constitute employment disqualifying her from all benefits throughout the entire period. Although she worked for the father-in-law of a close friend, there is no suggestion that her employment was not legitimate and the obvious seasonal nature of the business and genuine lack of work during the period of claimed unemployment is undisputed. Thus the agency's finding of wilfulness was arbitrary.
With respect to the agency's alternative argument that claimant Valvo should be required to repay a portion of the benefits for making a false statement within the meaning of subdivision 4 of section 597 of the Labor Law, the Appellate Division correctly held that the statute only applies to false statements of fact and that petitioner's 128*128 certification of unemployment represented an error of law. This does not mean, as the agency suggests, that wilful misrepresentation is now required under this section and section 594 thus rendering one of the sections meaningless. It should be clear from the Appellate Division's decision that section 597 permits recovery of benefits received within the past year when the claimant has made a false statement of fact even though unintended. However, when claimant has in good faith received benefits to which he or she was not entitled because of a mistake of law on the part of the claimant or the agency, none of the benefits may be recovered. This interpretation is required by the wording of the statute, and supported by its legislative history, which shows that it was designed to provide relief to claimants when an overpayment or erroneous payment of benefits resulted from an honest mistake, and to preclude all recovery when the claimant was not in any way responsible for the error (see, e.g., Industrial Comm Memorandum of April 9, 1942 on Assembly Int No. 1804, Print No. 2455).
Accordingly, the order of the Appellate Division should be affirmed in Matter of Valvo, and reversed in Matter of Loll and Matter of Polvino. In the latter two cases the determination of the appeal board should be reinstated.
In Matter of Valvo: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs.
In Matter of Loll and Matter of Polvino: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), orders reversed, without costs, and decisions of the Unemployment Insurance Appeal Board reinstated.
[1] Disposition of these appeals has been expedited pursuant to 22 NYCRR 500.2(g).
[2] Section 522 of the Labor Law states: "`Total unemployment' means the total lack of any employment on any day. The term `employment' as used in this section means any employment including that not defined in this title."
[3] The relevant portion of section 594 of the Labor Law states: "A claimant who has wilfully made a false statement or representation to obtain any benefit * * * shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits. Such penalty shall apply only once with respect to each such offense * * * A claimant shall refund all moneys received because of such false statement or representation made by him."
[4] The relevant portions of section 597 of the Labor Law state:"3. Limitation on review of determinations. Any determination regarding a benefit claim may, in the absence of fraud or wilful misrepresentation, be reviewed only within one year from the date it is issued because of new or corrected information * * *
"4. Effect of review. Whenever a new determination in accordance with the preceding subdivision or a decision by a referee, the appeal board, or a court results in a decrease or denial of benefits previously allowed, such new determination or decision * * * shall not affect the rights to any benefits already paid * * * provided they were accepted by the claimant in good faith and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his claim for benefits."

Monday, February 11, 2013


It would appear to me that when the "fraud" involves a small amount of payments, the remedy sought by the DOL is repayment and the finding is one of "willful misrepresentation". Thus, in Mailed and Filed: JANUARY 25, 2013 IN THE MATTER OF: Appeal Board No. 566637:

OPINION: Pursuant to Labor Law § 597 (3), absent fraud or willful misrepresentation, a claim may be review only within one year from when it was first determined. The records of the Department of Labor reflect certifications by the claimant that do not match records obtained by the Department of Labor reflecting the claimant's employment history. While testimony was not taken from a witness for the Department of Labor that would establish that the records of certifications qualified as business records, nonetheless, in this particular case, those records may still be relied upon. The claimant admitted that he had worked for the dollar store, but testified that he had no recollection of the days he worked,the manner in which he certified, or whether he received the benefits at issue. The claimant's inability to recall the circumstances of his employment or his certifications does not outweigh the records produced by the Department of Labor. The claimant did not testify, or otherwise produce any evidence, that the records introduced into evidence by the representative of the Commissioner of Labor were inaccurate; and did not introduce any evidence contradicting the information contained in those records. The records establish that the claimant worked but did not report the correct number of days worked when certifying for benefits. As the claimant would certainly have known at the time the days worked, his false certifications were willfully made. Accordingly, we conclude that the Commissioner of Labor had the necessary jurisdiction to issue the initial determinations which are the subject of this case. We further conclude, given the claimant's willful misrepresentations, that the forfeit penalty was properly imposed.The credible evidence also establishes that the claimant was working and receiving remuneration during the two weeks at issue. Only claimants who are totally unemployed are eligible to receive benefits. As the claimant was working, we conclude he was not eligible to receive benefits for the week ending May 17, 2009, and on one day in the week ending August 2, 2009.As the claimant was ineligible, the benefits he received were overpaid. The claimant ha snot denied that he worked at least four days in the week ending May 17, 2009;consequently, the benefits he received for that week were overpaid. As he worked on one day in the week ending August 2, 2009, one-quarter of the benefits he received were overpaid. Given the claimant's willful misrepresentations, we conclude that the overpayment is recoverable.

Friday, February 8, 2013


There is also this warning from the claimant's handbook:



Claiming unemployment insurance fraudulently is a serious offense. It can lead to severe penalties, including CRIMINAL PROSECUTION and imprisonment.

You may be guilty of fraud if you hold back information from or give false information to the Department of Labor. You must report the true reason you were separated from employment. If you work while receiving benefits and do not report that employment, even if it is part-time work, you may be committing fraud. You must report all full-time and part-time employment to the Labor Department or you risk criminal penalties.

It is fraud to allow someone else to certify for benefits for you by mail, telephone or on the Internet. TEL-SERVICE is offered in English and Spanish and we provide a translation service for other languages. There is a separate phone number for the hearing impaired (see ‘How Do I Get My Benefits’). There are special allowances for individuals with disabilities (see ‘Personal Identification Number’). However, in all cases, you are responsible for the actions and answers of your interpreter.

In all cases of fraud, we can impose civil penalties or fines. If you are convicted of a misdemeanor, the penalties are a fine up to $500 or up to a year in jail or both. The felony conviction carries an even longer jail sentence.

Under federal law, it is also a felony to alter, buy, sell or counterfeit a Social Security Account card. This offense is punishable by fine and imprisonment.

Unemployment Insurance is a protection for you now and in the future. Do not jeopardize this protection by committing fraud on your benefit claim."

Thursday, February 7, 2013


According to the web site of the Department of Labor:

"Unemployment Insurance Benefits Fraud

When someone collects unemployment insurance (UI) benefits by lying to the Department of Labor, he or she is committing fraud. We take UI benefits fraud very seriously. It is a crime that affects businesses and workers. It drives up UI taxes on law-abiding businesses, and it frustrates honest workers. We need every dollar to help those who honestly need these benefits.

Some examples of UI benefits fraud include:
  • Providing false information or failing to disclose information on your application for benefits, including lying about how you lost your job
  • Working while collecting unemployment benefits and inaccurately reporting your days and earnings
  • Working any amount of time in a week while collecting benefits and telling us you did not work
  • Earning more than $405 from employers in one week where benefits are collected and not correctly reporting true total earnings for that week
  • Failing to be ready, willing and able to work (e.g., out of the area, on vacation, sick, suffering total disability) while collecting UI benefits
  • Working "off the books" while collecting benefits
  • Using another person's identity (e.g., name, social security number) to file fraudulent claims
  • Helping another person file a false unemployment insurance claim
  • Collaborating with an employer to illegally claim unemployment insurance benefits
Any person who commits fraud will have to pay us back the money. He or she will be penalized, and may be arrested and prosecuted."

Wednesday, February 6, 2013


The newspapers today report that Long Beach City Councilman Michael Fagen was convicted Tuesday by a Nassau County jury of charges stemming from his collection of unemployment benefits while serving on the city council. He faces up to 4 years in prison. During the trial, which began Jan. 16, Gann said Fagen was a part-time employee eligible for unemployment benefits under state law. But prosecutors said Fagen knowingly defrauded state taxpayers by applying for unemployment benefits to which he was not entitled.

What are the effects of false certifications and how can they occur? Was prosecution for fraud pursued in this matter due to the high profile nature of this case?

Tuesday, February 5, 2013


Due to illness, I could not make yesterday's Mortgage Foreclosure Clinic but here is a picture from Nassau Lawyer re: Sandy Clinic - I am at extreme upper right.

Monday, February 4, 2013


I will be a volunteer lawyer today:

"Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County.

Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources.

In addition to meeting one-on-one with a volunteer attorney, housing counselors, bankruptcy attorneys and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- are on hand to provide assistance.

→ Reservations are required by calling the Bar Association at 516-747-4070. Please bring your mortgage documents. Attorneys fluent in other languages are available upon request when reserving.

All clinics are 3-6 p.m. and are held at the Nassau County Bar Association in Mineola."

Friday, February 1, 2013


Sometimes an abused spouse will have mental health issues and the abuser may raise this issue in a child custody matter. A forensic evaluator is appointed and the abused spouse's mental issues are highlighted. This is what happened in a recent case.

IN THE MATTER OF XIOMARA M. v. ROBERT M., 9074 (1st Dept 1-29-2013)
2013 NY Slip Op 00414
In re Xiomara M., Petitioner-Respondent, v. Robert M., Jr.,

Appellate Division of the Supreme Court of New York, First Department.
Decided on January 29, 2013

Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or
about November 15, 2011, awarding petitioner mother sole legal and physical
custody of the parties' children, subject to respondent father's right of
visitation, unanimously affirmed, without costs.

Andrew J. Baer, New York, for appellant.

Karen P. Simmons, The Children's Law Center, Brooklyn (Susan M. Cordaro of
counsel), attorney for the children.


The record supports the court's determination that the totality of the
circumstances warrants awarding custody of the children to petitioner (see
Eschbach v Eschbach, 56 NY2d 167 [1982]). In determining the best interests
of the children, the court considered the appropriate factors, including
that petitioner had always been the primary care giver and made sure that
the children received the educational and medical attention they required
(see e.g. Matter of Battista v Fasano, 41 AD3d 712 [2nd Dept 2007], lv
denied9 NY3d 818 [2008]), that she was more likely to foster a relationship
between respondent and the children than he was to foster a relationship
between petitioner and the children (see Matter of Lionel E. v Shaquana
R.B., 73 AD3d 434 [1st Dept 2010]), and the history of domestic violence at
the hands of respondent (seeDomestic Relations Law 240[1][a]).

The court reasonably rejected the recommendation of its appointed forensic
psychologist (see Matter of Kozlowski v Mangialino, 36 AD3d 916 [2nd Dept
2007]). The court fairly found, inter alia, that the expert did not
sufficiently weigh the impact of domestic violence on petitioner's emotional
and psychic state, perhaps causing her depression and the other difficulties
she faced. The court fairly concluded that the expert disproportionately
blamed petitioner for problems in the parties' relationship while ignoring
her explanations, and relied too heavily on the reports of the paternal
grandparents, who had themselves made false reports of abuse and neglect
against petitioner.

The court properly considered the wishes of the children as one of many
factors in its determination. There is no support for respondent's
contention that the court treated the children's wishes as determinative.