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

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


March 17, 2011

IN THE MATTER OF THE CLAIM OF SUSAN A. INGRAO-WOODS, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 14, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

MEMORANDUM AND ORDER

Calendar Date: February 2, 2011

Before: Spain, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ.

In August 2007, claimant started an online business providing bereavement support products over the Internet. She made an initial investment of $25,000, $16,000 of which was used to purchase the main product, which was music CDs to be sold on the business Web site. Claimant owned 90% of the business and her husband the remaining 10%. In October 2008, claimant filed an application for unemployment insurance benefits. The Unemployment Insurance Appeal Board ruled that she was ineligible to receive benefits because she was not totally unemployed. Claimant now appeals.

We affirm. It is well settled that "[a] claimant who is a principal in an ongoing corporation will not be considered totally unemployed if he or she stands to benefit financially from its continued operation, no matter how minimal the activities performed on its behalf" (Matter of Bernstein [Commissioner of Labor], 67 AD3d 1287, 1287-1288 [2009]; see Matter of Thomas [Commissioner of Labor], 58 AD3d 1099, 1099-1100 [2009]). Here, claimant established a Web site, opened a business checking account, paid routine business expenses, distributed business cards, advertised products, actively sold products and deducted business expenses and losses on her partnership tax returns during the relevant period. Although the business did not make a profit, claimant clearly stood to gain a monetary benefit as a result of her activities. Therefore, substantial evidence supports the Board's decision that she was not totally unemployed (see Matter of Gazzara [Commissioner of Labor], 60 AD3d 1226, 1227 [2009]; Matter of Germanow [Commissioner of Labor], 56 AD3d 923, 924 [2008]; Mater of Siegel [Commissioner of Labor], 43 AD3d 1224, 1225 [2007]).

Spain, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110317

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