Opinion
November 22, 1967
Appeal by two of the four claimants affected from a decision of the Unemployment Insurance Appeal Board (1) holding each claimant ineligible for benefits on the ground that his claim as filed was not a valid original claim inasmuch as he did not have at least 20 weeks of covered employment in his base period and (2) charging each claimant with an overpayment of benefits deemed recoverable. Appellants are husband and wife and the parents of the two other claimants. These four, with one Janos Kantor, formed a troupe of aerial performers who for some years performed as a unit with various circuses and shows; clearly as independent contractors and thus ineligible for unemployment insurance benefits. In 1952 they entered into an arrangement whereby Kantor was designated as their employer. There was ample evidence that the purported employment status was completely fictitious. Appellants' contention that the initial determinations were made by an unauthorized person is baseless, such determinations having been rendered in compliance with Procedure 6500 established by the Industrial Commissioner, providing that "Local offices make the determinations in claimant cases concerning fraud when they can ascertain the facts" and that "The Counsel's office performs these functions in all other cases." The statute authorizes the "procedure established" in this form (Labor Law, § 597, subd. 1; § 530, subd. 1); and respondent's brief correctly characterizes as absurd the contention that the Legislature intended that the millions of initial determinations issued annually be made personally by the Industrial Commissioner or his deputy. Equally tenuous is appellants' contention that they "did not receive adequate or timely notice of the charges against them", the initial determination in each case stating: "You did not have 20 weeks of bona fide covered employment in N.Y. State, in the base periods of your claims" and "You listed a false employer and false period of employment on your original application for benefits." We find no basis whatsoever for the assertion that appellants were not accorded a fair trial; the hearings having been conducted in conformity with the well-settled rules governing administrative proceedings of this nature and appellants being represented by counsel who examined and cross-examined witnesses at length and, for the most part, incidentally, interposed no objections or complaints to the procedures now complained of. Contrary to appellants' contention that there was a failure of proof, including that of scienter, the evidence which the board chose to accept was not merely substantial but was, indeed, overwhelming. This included proof of appellants' convictions of larceny, upon their pleas of guilty, under indictments charging, inter alia, larceny by false pretenses, whereby they obtained the very same unemployment insurance benefits which are the subjects of the initial determinations and the Referee's and the board's decisions now before us. Decision affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Gibson, P.J.