In re the Claim of Baglieri

251 A.D.2d 720, 673 N.Y.S.2d 781, 1998 N.Y. App. Div. LEXIS 6468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1998
• Status: Published

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 10, 1996, which, upon reconsideration, adhered to its prior decision ruling that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Claimant was receiving unemployment insurance benefits while employed as vice-president, comanager and minority shareholder in a family-operated catering business. The Unemployment Insurance Appeal Board ruled that claimant was ineligible to receive benefits because he was not totally unemployed and charged him with a recoverable overpayment of benefits. We affirm. While claimant owned a minority of the corporate shares and the business was operating at a net loss, these factors alone do not undermine the Board’s decision that claimant was not totally unemployed (see, Matter of Podolsky [Sweeney], 247 AD2d 737; Matter of Micelli [Hudacs], 207 AD2d 929). The record reveals that claimant continued to book catering events and manage the business while he was receiving benefits. Moreover, the business earned $573,000 in gross profits in the year prior to claimant’s first application for benefits and paid salaries to all officers besides claimant during the relevant time periods. We find that this proof constitutes substantial evidence to support the Board’s decision that claimant lacked total unemployment (see, Matter of Gauland [Sweeney], 223 AD2d 805; Matter of De Martino [Hudacs], 186 AD2d 854). Finally, the Board properly concluded that the overpayments were recoverable pursuant to Labor Law § 597 (4) (see, Matter of Gray [Roberts], 130 AD2d 904, 905).

Mikoll, J. P., Mercure, Crew III, White and Graffeo, JJ., concur. Ordered that the decision is affirmed, without costs.