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In the Matter of the Claim of Kenneth Dupey v. Commissioner of Labor

State of New York Supreme Court, Appellate Division Third Judicial Department


December 23, 2010

IN THE MATTER OF THE CLAIM OF KENNETH DUPEY, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 11, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

MEMORANDUM AND ORDER

Calendar Date: November 3, 2010

Before: Cardona, P.J., Rose, Malone Jr., Stein and Garry, JJ.

Claimant filed for unemployment insurance benefits after losing his employment. While receiving benefits, he created a Web site business through which he solicited and accepted freelance design and marketing jobs. An Administrative Law Judge then found claimant ineligible to receive benefits effective as of the date of creation of his Web site. When claimant again applied for unemployment insurance benefits, the Department of Labor found claimant ineligible because he was not totally unemployed based upon the continued existence of his Web site business. Ultimately, the Unemployment Insurance Appeal Board sustained that determination, and claimant now appeals.

We affirm. Whether a claimant is totally unemployed is an issue of fact to be resolved by the Board and its determination will not be disturbed when it is supported by substantial evidence, despite the existence of evidence that would have supported a contrary result (see Matter of Bernstein [Commissioner of Labor], 67 AD3d 1287, 1287 [2009]; Matter of Bernard [Commissioner of Labor], 53 AD3d 1006, 1006 [2008]). Furthermore, a claimant who is a principal in an ongoing business may not be considered totally unemployed, despite the fact that the business may not be profitable or fully operational, if he or she stands to benefit financially from its continued operation (see Matter of Bernstein [Commissioner of Labor], 67 AD3d at 1287-1288; Matter of Thomas [Commissioner of Labor], 58 AD3d 1099, 1099-1100 [2009]). Here, it was undisputed that claimant's Web site was still operational, and he testified that he would accept any work offered to him through the site and deduct the expenses of the business on his income tax return. Accordingly, we find that substantial evidence supports the Board's decision.

Cardona, P.J., Rose, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20101223

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