
    In the Matter of the Claim of Nicholas Kominski, Respondent. Louis L. Levine, as Industrial Commissioner, Appellant.
    Argued April 29, 1977;
    decided June 2, 1977
    
      
      Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for appellant.
    
      Anthony J. Gigliotti, for respondent.
   Memorandum. We agree with the Appellate Division that the Unemployment Insurance Appeals Board misinterpreted and misapplied subdivision 2 of section 598 of the Labor Law (L 1972, ch 396). The statute by its terms only applies when the Secretary of Labor of the United States finds that the application of subdivision 1 (Labor Law, § 598) is in conflict with the requirements of Federal law.

The history of the statute, as traced by the Appellate Division in its opinion, indicates that this was the sole intent of the Legislature in enacting subdivision 2. Since the Secretary of Labor made no finding as contemplated by the statute, there was no basis for recoupment of the moneys paid to the claimant.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.  