Calendar Date: April 25, 2018Before: Garry, P.J., Lynch, Clark, Aarons and Rumsey, JJ.__________Zachary Carter, Corporation Counsel, New York City (MelanieT. West of counsel), for appellant.David E. Woodin, Catskill, for Fred Weinstein, respondent.__________Rumsey, J.Appeal from a decision of the Unemployment Insurance AppealBoard, filed April 26, 2016, which ruled that claimant wasentitled to receive unemployment insurance benefits.Claimant began employment as a sanitation worker for theCity of New York on September 15, 2014. His employment wasterminated in September 2015 after it was discovered that he hadprovided false information on his employment application.Claimant’s application for unemployment insurance benefits wasinitially denied by the Department of Labor on the ground thathis employment was terminated for misconduct, but anAdministrative Law Judge (hereinafter ALJ) reversed the denialfollowing a hearing and awarded benefits. The UnemploymentInsurance Appeal Board affirmed the ALJ’s determination, and theemployer appeals.“The determination of whether an employee was terminatedfor misconduct is a factual question for the Board to resolve,however, there must be substantial evidence in the record tosupport the Board’s decision (Matter of Gilbert [Division of N.Y.State Police-Commissioner of Labor], 38 AD3d 961, 962 [2007], lvdenied 8 NY3d 815 [2007]; accord Matter of Mosher [City ofBatavia-Commissioner of Labor], 41 AD3d 1005, 1006 [2007]). Afalse representation on an employment application regardingwhether a claimant has ever been convicted of a crime canconstitute disqualifying misconduct on a claim for unemploymentinsurance benefits (see Matter of Brimage [Commissioner ofLabor], 93 AD3d 1010, 1011 [2012]; Matter of Redden [Commissionerof Labor], 277 AD2d 629, 630 [2000]). Here, the Board adoptedthe finding of the ALJ that claimant had falsified his jobapplication by answering no when asked if he had ever beenconvicted of a felony or misdemeanor when, in fact, he had beenpreviously convicted of two felonies and six misdemeanors. TheBoard concluded, however, that claimant’s false representationdid not disqualify him from receiving unemployment insurancebenefits due to the length of time that the employer took intaking action against him.Although it is not entirely clear from the record when theemployer first learned of claimant’s criminal history, theemployer was aware no later than March 2015 that claimant hadfalsely represented that history, and claimant was terminated inSeptember 2015. The individual who investigated claimant’sapplication for the employer testified that the length of timebetween the filing of the application and the termination was notexcessive because of the large amount of applications foremployment for the City of New York that must be investigated andthe employer’s policy to provide an opportunity for theemployee/applicant to respond to any information uncovered by theinvestigation before taking action. In our view, the length oftime taken by the employer prior to taking action againstclaimant, under these circumstances, should not have been afactor in determining whether claimant’s false representationsconstituted disqualifying misconduct (see Matter of Corrar [HumanResources Admin. of City of N.Y.-Hartnett], 145 AD2d 763, 764[1988]). In view of the foregoing, we find that substantialevidence does not support the Board’s decision that claimant wasentitled to receive unemployment insurance benefits and it mustbe reversed.Garry, P.J., Lynch, Clark and Aarons, JJ., concur.ORDERED that the decision is reversed, without costs, andmatter remitted to the Unemployment Insurance Appeal Board forfurther proceedings not inconsistent with this Court’s decision.ENTER:Robert D. MaybergerClerk of the Court
