SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 16, 1969
IN THE MATTER OF THE CLAIM OF ROBERT G. HORNER, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Appeal by claimant from a decision of the Unemployment Insurance Appeal Board, filed March 15, 1968, which held him ineligible for unemployment insurance benefits on the ground that he was not totally unemployed (Labor Law, § 522), holding that he willfully misrepresented his employment status to receive benefits, for which a forfeiture of 44 effective days was imposed (Labor Law, § 594), and charging him with an overpayment of $605 in benefits which was ruled to be recoverable.
Greenblott, J. Herlihy, J. P., Reynolds, Aulisi, Cooke and Greenblott, JJ., concur in memorandum by Greenblott, J.
Appellant was laid off on May 6, 1967 and thereafter filed for benefits, asserting total unemployment. The board found that appellant was not totally unemployed when filing for benefits, noting that "He spent substantial time and effort preparing his land for a golf course, which he expected to operate at a profit." We cannot find as a matter of law that the board erred in its conclusion. On the evidence, the board could properly find that claimant was self-employed, and therefore not totally unemployed (Matter of Jordal [ Catherwood ], 28 A.D.2d 745). The board could also properly determine that claimant, in denying self-employment, willfully misrepresented his employment status to obtain benefits (Matter of Soroka [ Catherwood ], 24 A.D.2d 920). Hence, any benefits received as a result thereof were required to be repaid (Matter of Czagany [ Catherwood ], 28 A.D.2d 1049).
Decision affirmed, without costs.
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