In re the Claim of Katzen

Weiss, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 29, 1984, which adhered to its prior decision ruling that claimant was ineligible to receive [1069] benefits because he was not capable of employment and charged him with a recoverable overpayment of benefits. Claimant, age 61, was last employed as a hardware salesman from January 1982 until August 20, 1983, when he was laid off for lack of work. His application for unemployment insurance benefits was approved effective September 11, 1983. Shortly thereafter, on September 14, 1983, claimant filed for disability benefits from the Federal Social Security Administration (see, 42 US Stat 423). He also applied for disability benefits from his union. By notice dated March 15, 1984, claimant was determined to be incapable of working as of September 14, 1983 and unemployment benefits paid since that date in the amount of $3,060 were deemed recoverable (Labor Law § 597 [4]). The Unemployment Insurance Appeal Board sustained the determination and this appeal ensued. The record establishes that claimant suffers from several debilitating ailments preventing him from working at this time and that his entitlement to Federal disability benefits was confirmed, effective February 1, 1984 (see, 42 US Stat 423 [d]). We recognize that claimant’s application to the Social Security Administration may be deemed supportive evidence of a factual determination of disability and resulting disqualification. The difficulty with this case, however, is that we are unable to determine whether the Board gave the application that effect or erroneously assumed that the mere filing of the application ipso facto established a disability (see, Matter of Roehsler [Cather-wood], 19 AD2d 927; see, 62 NY Jur, Unemployment Insurance, § 107, at 92 [1968]). It is pertinent that the administrative law judge concluded that he was constrained to find claimant ineligible as of September 14,1983, the date the disability application was filed. Such a mechanical interpretation should be rejected (Matter of Roehsler [Catherwood], supra). While a remittal might be necessary in some circumstances to determine when claimant became unavailable for employment (supra), here claimant’s disability may properly be deemed established as of the date his Federal disability application was granted, i.e., February 1, 1984. Since claimant’s unemployment insurance benefit payments terminated effective January 29, 1984, it follows that there was no overpayment and no right to recovery. Decision reversed, with costs, and objections to claimant’s eligibility from September 14, 1983 through January 29, 1984 are overruled. Mahoney, P. J., Kane, Main, Casey and Weiss, JJ., concur.