SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 20, 1969
IN THE MATTER OF THE CLAIM OF ALVIN T. KENT, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 9, 1968, holding claimant ineligible for benefits effective November 28, 1966 because of a lack of total unemployment (Labor Law, § 522), charging him with an overpayment of $811.25, ruled to be recoverable, and holding that he willfully misrepresented to obtain benefits for which a forfeiture of 51 effective days was imposed (Labor Law, § 594).
Greenblott, J. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Greenblott, J.
What constitutes "total unemployment" is a factual decision and thus if the board's determination is supported by substantial evidence, it cannot be disturbed (Matter of Weiss [ Catherwood ], 28 A.D.2d 577). The record contains substantial evidence that during the period in question appellant was active in the operation of a store selling photographic equipment and supplies and, in addition, performing studio and photographic work in partnership with his father. The board could properly find that he was engaged in self-employment and not totally unemployed. (Matter of Emanuel [ Catherwood ], 29 A.D.2d 798.) "The fact that this was merely a sideline while he was regularly employed or that it was sporadic and involved only a limited investment is not controlling. Nor is the fact that the endeavor was nonremunerative during the period for which benefits are claimed (Matter of Bailey [ Catherwood ], 18 A.D.2d 727)" (Matter of Carasso [ Catherwood ], 23 A.D.2d 935, 936). Likewise, the question of willful representation is factual and since there is substantial evidence to support the board's determination, it must be upheld. (Matter of Tiber [ Catherwood ], 31 A.D.2d 704.)
Decision affirmed, without costs.
© 1998 VersusLaw Inc.