In re the Claim of Horvat

The claimant, by fraud, drew unemployment insurance benefits to which she was not entitled. Pursuant to section 594 of the Unemployment Insurance Law (Labor Law, art. 18), the Industrial Commissioner, acting through one of his “ Insurance Managers ”, imposed the maximum penalty of eighty effective days during which claimant might not receive insurance benefits. The Referee on findings, as above outlined, áffirmed the initial determination. The Unemployment Insurance Appeal Board specifically affirmed all of the findings of fact and conclusions of law except that it reduced the forfeiture penalty from eighty effective days to twenty effective days. The commissioner contends that the board was without authority to reduce the penalty.

Although the Industrial Commissioner has authority to make initial determinations, including the right to fix penalties, his discretion in such matters is not absolute, but is subject to a review by a referee and by the Unemployment Insurance Appeal Board, which is specifically given the authority to affirm, reverse or modify (Unemployment Insurance Law, § 621, subd. 3). There is no limitation on this right which would prevent the board from modifying a penalty, even in the absence of a finding that the initial determination of the commissioner was arbitrary or capricious.

The decision should be affirmed, without costs.

Foster, P. J., Heffernan, Brewster, and Santry, JJ., concur.

Decision affirmed, without costs.