SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 26, 1968
IN THE MATTER OF THE CLAIM OF ELLIOT M. TIBER, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Reynolds, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.
Appeal from a decision of the Unemployment Insurance Appeal Board ruling claimant ineligible for benefits effective June 21, 1965 to August 29, 1965 because of lack of total unemployment (Labor Law, § 522), charging him with an overpayment of $475 in benefits, ruled recoverable, and ruling that he willfully made false statements to obtain benefits (Labor Law, § 594). The board has found that claimant was not totally unemployed in that he performed bar tender and managerial services for a corporation owned by his father and mother in return for board, lodging and storage space. This determination is supported by substantial evidence and thus the board could properly find that claimant was not totally unemployed (e.g., Matter of Tiano [ Catherwood ], 27 A.D.2d 879; Matter of Hare [ Catherwood ], 20 A.D.2d 733). Similarly the issue of willful misrepresentation is factual and thus the board's determination must be upheld (Matter of Tiano [ Catherwood ], [ supra ]; Matter of Hare [ Catherwood ], [ supra ]).
Decision affirmed, without costs.
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