In re the Claim of Bruckner

50 A.D.2d 647, 374 N.Y.S.2d 803, 1975 N.Y. App. Div. LEXIS 12471

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1975
• Status: Published

Opinion

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 5, 1974, which affirmed the decision of a referee sustaining the initial determination of the Industrial Commissioner that claimant was ineligible to receive benefits because he was not totally unemployed, finding that claimant willfully made false statements to obtain benefits and imposing a forfeiture. Claimant, a fuel oil truck driver, was laid off on April 7, 1972. He filed for benefits on April 13, 1972, responding in the negative to questions as to whether he was in any business that brought in or would bring in income. Claimant further classified himself as totally unemployed. Although he was not employed, claimant had, on March 6, 1972, filed a certificate of doing business in the residential and industrial fence trade. He did, in fact, conduct such a business, although he contends he did not realize any profit. This court has consistently held that self-employment is employment within the meaning of section 522 of the Labor Law and that one who is in business for himself is not totally unemployed and is, therefore, ineligible for unemployment insurance benefits (Matter of Rado [Catherwood], 27 AD2d 965; Matter of Carasso [Catherwood], 23 AD2d 935; Matter of Bailey [Catherwood], 18 AD2d 727). Substantial evidence in this record supports each and every determination of the board. Decision affirmed, without costs. Herlihy, P. J., Sweeney, Kane, Koreman and Larkin, JJ., concur.