In re the Claim of Black

64 A.D.2d 995, 408 N.Y.S.2d 830, 1978 N.Y. App. Div. LEXIS 12988

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 5, 1977. The claimant during the period in issue was employed by the Town of North Salem at an annual salary of $1,500 per year. He was paid monthly and his duties, among other things, required him to keep a record of the water used by the town water system on a daily basis and also to test the chlorination level daily. He conceded that he was required to spend about five minutes daily working. The board found that he was not totally unemployed within the meaning of the Unemployment Insurance Law and claimant appeals. Section 591 of the Labor Law provides that benefits are to be paid "only to a claimant who is totally unemployed”, and section 522 of the Labor Law defines total unemployment as "the total lack of any employment on any day.” The claimant contends that employment for only five minutes per day is the equivalent of total unemployment and, therefore, the board’s interpretation of total unemployment as meaning no employment is irrational. This court has recently held that even though the salary is nominal and the employment duties very slight, the issue becomes one of fact for the board (Matter of Staheli [Ross], 60 AD2d 670). There is substantial evidence in the record to support the board’s determination and we do not find its literal interpretation of the statutory definition of total unemployment to be irrational. Decision affirmed, without costs. Mahoney, P. J., Kane, Staley, Jr., Main and Herlihy, JJ., concur.