In the Matter of the Claim of ARNOLD LASKER, Appellant. COMMISSIONER OF LABOR, Respondent.
Calendar Date: September 19, 2017
Massoud & Pashkoff, LLP, New York City (Lisa Pashkoff of
counsel), for appellant.
T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for respondent.
Before: Garry, J.P., Lynch, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from a decision of the Unemployment Insurance Appeal Board,
filed April 21, 2016, which ruled, among other things, that
claimant was ineligible to receive unemployment insurance
benefits because he was not totally unemployed.
was president and a 50% shareholder of a corporation engaged
in the check cashing business. The business was sold in
November 2010, payable in 72 monthly installments, and the
name of the corporation was changed. Claimant filed a claim
for unemployment insurance benefits effective February 21,
2011 and began receiving benefits. The Department of Labor
thereafter found that claimant was ineligible to receive
unemployment insurance benefits, effective from February 21,
2011 until the reason for his ineligibility no longer exists,
because he was not totally unemployed during the time that he
received benefits, and charged him with recoverable
overpayment, reduced his right to receive future benefits by
704 days and imposed civil penalties. Following a hearing, an
Administrative Law Judge found that claimant was ineligible
to receive benefits from February 21, 2011 to December 11,
2012, but otherwise upheld the Department's
determinations. The Unemployment Insurance Appeal Board
affirmed, and claimant now appeals.
affirm. "[W]hether a claimant is totally unemployed for
purposes of receiving unemployment insurance benefits is a
factual question for the Board and its determination will be
upheld if supported by substantial evidence" (Matter
of Robinson [Commissioner of Labor], 125 A.D.3d 1038,
1039 , lv dismissed 26 N.Y.3d 953');">26 N.Y.3d 953 ;
accord Matter of Roberson [Commissioner of Labor],
142 A.D.3d 1259, 1260 ). "[A] corporate officer
who performs activities in connection with the winding up of
a corporation will not be considered totally unemployed, even
if his or her activities in this regard are minimal"
(Matter of Bigelow [Commissioner of Labor], 13
A.D.3d 1022, 1022-1023 ; see Matter of Bunting
[Commissioner of Labor], 61 A.D.3d 1229, 1229-1230
; Matter of DeAngelo [Commissioner of Labor],
54 A.D.3d 468, 468 ; Matter of Downton
[Commissioner of Labor], 45 A.D.3d 1088, 1089 ).
Following the sale of the business, claimant took measures in
winding up the business during the time period in question,
including changing the company name with the Department of
State as required by the purchase agreement, distributing the
monthly installment payments received from the purchaser of
the business, and writing checks from the company account for
accountant and counsel fees, taxes, insurance costs, a
charitable contribution, office supplies and other business
expenses. Under these circumstances, the Board's
determination that claimant was not totally unemployed is
supported by substantial evidence and will not be disturbed
(see Matter of Bunting [Commissioner of Labor], 61
A.D.3d at 1229-1230; Matter of Downton [Commissioner of
Labor], 45 A.D.3d at 1089). "Contrary to
claimant's assertion, actual financial gain is not a
prerequisite to a finding that a claimant is not totally
unemployed" (Matter of DeAngelo [Commissioner of
Labor], 54 A.D.3d at 469 [citation omitted]; see
Matter of Rance [Hudacs], 196 A.D.2d 930, 930 ).
extent that claimant challenges the finding of a recoverable
overpayment and the assessment of penalties, the record
reflects that claimant denied working as an officer of a
corporation in his application for benefits, despite signing
the purchase agreement as the seller's president and
being listed as the corporation's chief financial officer
of the renamed corporation with the Department of State.
Further, he did not report any of his activities in winding
up the business when certifying for benefits. Accordingly, we
decline to disturb the Board's finding that claimant made
willful false statements in order to obtain benefits and was
therefore subject to a recoverable overpayment and penalties
(see Matter of Connell [Commissioner of Labor], 82
A.D.3d 1437, 1439 ; Matter of Bunting [Commissioner
of Labor], 61 A.D.3d at 1230).
J.P., Lynch, Devine, Mulvey ...