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In re the Claim of Denny

233 A.D.2d 733 Court N.Y. App. Div. Decision date 1996-11-21 English

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p. 733
In the Matter of the Claim of Leslie C. Denny, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.
[650 NYS2d 1013]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 7, 1995, which, inter alia, ruled that claimant was ineligible to receive unemployment benefits because he was not totally unemployed.

While collecting unemployment insurance benefits, claimant solicited business from former clients in an attempt to gain employment with his former employer’s competitor. The Board determined that claimant was not totally unemployed for 10 days during the time period he was receiving benefits (modifying the Administrative Law Judge’s finding of 16 days) and charged him with a recoverable overpayment.

On appeal, claimant does not seriously dispute that he was

p. 734
ineligible to collect unemployment insurance benefits; rather, he urges that the number of days he was ineligible should be reduced from 10 to 8. In light of claimant’s testimony that he made 10 business contacts over a period of "a month or so” and his own estimate that he did so two days per week, we find substantial evidence supporting the Board’s decision that claimant was not totally unemployed for 10 days. We also reject claimant’s contention that, because he did not willfully make false statements in collecting unemployment benefits, he should not be responsible for any overpayment (see, Matter of Strauch [Hudacs], 193 AD2d 1044 ; Matter of Simone [Estate of King—Hartnett], 142 AD2d 768 ).

Mercure, J. P., Casey, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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