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In re the Claim of Chernavsky

76 A.D.2d 739 Court N.Y. App. Div. Decision date 2010-08-05 English

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p. 739
In the Matter of the Claim of Ilia Chernavsky, Appellant. Commissioner of Labor, Respondent.
[905 NYS2d 525]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 23, 2008, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was unable to file a valid original claim.

Claimant stopped working for the employer and, in August 2008, he filed a claim for unemployment insurance benefits. After a hearing, an Administrative Law Judge concluded that he was not entitled to receive benefits. The Unemployment Insurance Appeal Board agreed, prompting this appeal.

p. 740
We affirm. To file a valid claim for unemployment insurance benefits, claimant was required to show that he earned “remuneration of one and one-half times the high calendar quarter earnings within the base period” (Labor Law § 527 [1] [d]; [2] [a]). Here, claimant earned $7,483.20 during the base period (see Labor Law § 520), which is less than IV2 times the $5,097.60 that he earned in the high calender quarter.[1] While claimant takes issue with the calculation of his earnings in the high calendar quarter, suggesting that $422.40[2] in overtime should be deducted from those earnings because he was “forced” to work “illegal overtime,” there is no legal basis for the exclusion of the amount he earned in overtime during this time period. As used in the Labor Law, “remuneration” is defined to include “every form of compensation for employment paid by an employer to his [or her] employee” (Labor Law § 517 [1]), and there is no valid basis to exclude the salary that claimant received during this quarter for the overtime he worked. As such, substantial evidence supports the Board’s finding that claimant was unable to file a valid original claim (see Matter of Stennett [Commissioner of Labor], 54 AD3d 478 , 479 [2008]; Matter of Sotomayor [Commissioner of Labor], 34 AD3d 957 , 958 [2006]; Matter of Fiorino [Commissioner of Labor], 34 AD3d 892 , 893 [2006]).

Mercure, J.P., Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

1 Claimant earned $2,385.60 in the second quarter, and did not work in either the third or fourth quarter of 2007.

2 Claimant argued at the hearing that $345.60 in overtime should be deducted.

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