In re the Claim of Brandau

52 A.D.2d 696, 382 N.Y.S.2d 389, 1976 N.Y. App. Div. LEXIS 12372

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 18, 1975, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner holding claimant ineligible to receive benefits effective August 11, 1975 because he was not totally unemployed. The question of whether or not a person is totally unemployed is factual and, hence, within the sole province of the board, so long as its decision is supported by substantial evidence (Matter of Schatzberg [Catherwood], 32 AD2d 710). Here, claimant was the 100% owner of the stock of a corporation and spent three to four hours each day in the furtherance of the business of the still active corporation. Failure of the corporation to make a profit during this time period is not controlling (Matter of Schneider [Levine], 50 AD2d 631). In addition, the fact that claimant did not realize that his activities constituted employment is of no avail to him (Matter of Schatzberg [Catherwood], supra). The board’s decision is supported by substantial evidence and it must be affirmed. Decision affirmed, without costs. Greenblott, J. P., Kane, Main, Larkin and Herlihy, JJ., concur.