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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


December 13, 2012

IN THE MATTER OF THE CLAIM OF ALLAN W. LOWMAN, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT. (AND TWO OTHER RELATED CLAIMS.)

MEMORANDUM AND ORDER

Calendar Date: October 29, 2012

Before: Peters, P.J., Rose, Spain, Kavanagh and McCarthy, JJ.

Appeals from three decisions of the Unemployment Insurance Appeal Board, filed February 16, 2011, which ruled that claimants were disqualified from receiving unemployment insurance benefits because they voluntarily left their employment without good cause.

Claimants were officers and sole shareholders of a corporation that operated a wholesale floral distribution business. In 2009, they made a decision to close the business, which had been owned and run by their family for over 80 years. Their applications for unemployment insurance benefits were initially denied, but were subsequently granted following a combined hearing before an Administrative Law Judge. Upon administrative review, the Unemployment Insurance Appeal Board reversed and denied claimants benefits, concluding that they had voluntarily left their employment without good cause. Claimants appeal.

"When a claimant closes an operating business, the issue of whether he or she is qualified to receive benefits turns upon whether there was a compelling reason to close the business" (Matter of Pitic [Commissioner of Labor], 249 AD2d 671, 671 [1998]; accord Matter of Rosen [Commissioner of Labor], 9 AD3d 775, 775-776 [2004]; see Matter of Crawford [Hudacs], 182 AD2d 1047, 1048 [1992]). Although the business's tax returns showed "paper loses" during the last three years of operation, gross receipts and expenses remained steady during that period and there is no indication that the business was unable to meet its financial obligations. Indeed, claimants continued to draw an annual salary and receive health insurance benefits from the corporation, and the salary of one of the claimants was actually increased in 2009. Moreover, in 2009, the business sold parcels of land that were nonessential to the operation of their business for a total of approximately $475,000. The Board rejected claimants' testimony that the proceeds of the sale of the property were used to pay corporate debt and that they had made personal loans to the business, noting their failure to submit any supporting documentation, and we find no basis upon which to disturb that determination. Issues of witness credibility, the evaluation of evidence and the inferences to be drawn therefrom are within the exclusive province of the Board (see Matter of Di Maria v Ross, 52 NY2d 771, 772-773 [1980]; Matter of Pranzo [Sweeney], 235 AD2d 897, 897 [1997]). Under these circumstances, substantial evidence supports the Board's determination that claimants did not have a compelling reason to close the business (see Matter of Pitic [Commissioner of Labor], 249 AD2d at 671; Matter of Sparber [Sweeney], 226 AD2d 858, 859 [1996]; see also Matter of Hoos [Commissioner of Labor], 254 AD2d 677, 677 [1998]).

Peters, P.J., Rose, Spain, Kavanagh and McCarthy, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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