Opinion
October 27, 1967
Appeal from a decision of the Unemployment Insurance Appeal Board which determined that the claimant was ineligible to receive benefits effective February 1, 1966 and May 9, 1966 on the ground that he was not available for employment and charged him with an overpayment of $660 in benefits which was ruled recoverable on the ground that he willfully concealed a pertinent fact in connection with his claim for benefits. The claimant, a university graduate, is 66 years of age and was employed for 20 years until September, 1965 as a sales representative of a paper box manufacturer earning commissions of about $15,000 per year. Concurrently with this work, he was also employed by a printing firm at a salary of $155 per week until October, 1965. The claimant states that he lost his employment because the firm for which he worked went bankrupt; that they reorganized under a new name, but that he was unable to secure employment with the new firm. Although claimant's primary occupation was a printing salesman, he made no efforts to obtain employment in that field, or in the paper box business except his attempt to find employment with the successor of his former employer. The record establishes that from February 1, 1966 the claimant was attempting to qualify as an expert on the problems of water and air pollution in order to obtain employment with a New England engineering firm in the field of public relations. In this endeavor he worked about 25 hours per week on a voluntary basis and without compensation. He was, however, reimbursed in July, 1966 for his expenses, and was given a gratuity of $100 to encourage him to continue his efforts. The board concluded that the claimant limited his search for employment to one employer, worked 25 hours a week in this endeavor and in this manner foreclosed the opportunity of securing other employment, thereby making himself unavailable for employment effective February 1, 1966. The board also concluded that his failure to disclose his activities concerning his prospective employment with the engineering firm constituted a willful concealment of pertinent facts in connection with his claim for benefits. "Whether a claimant's efforts to secure employment are sufficiently diligent to satisfy the statutory requirement of availability is a question of fact to be determined by the board and its determination, if rendered upon substantial evidence must be sustained." ( Matter of Knobloch [ Catherwood], 28 A.D.2d 765, 766.) The claimant's efforts to secure employment were limited in scope and substantial evidence exists in the record to sustain the finding of unavailability for employment. The claimant, having elected not to disclose his arrangements with the engineering firm, assumed the risk of having the board decide that such failure to disclose was willful and that the payments made to him during such period were recoverable. ( Matter of Hare [ Catherwood], 20 A.D.2d 733; Matter of Tiano [ Catherwood], 27 A.D.2d 879.) Decision affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.