In re the Claim of De Laurentis

253 A.D.2d 958, 677 N.Y.S.2d 828, 1998 N.Y. App. Div. LEXIS 9494

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1998
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 20, 1997, which, upon reconsideration, inter alia, adhered to its prior decision ruling that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the Unemployment Insurance Appeal Board’s ruling that, inter alia, claimant was ineligible to receive benefits because he was not totally unemployed. The record indicates that claimant, who was laid off from his seasonal employment as a landscaper every winter, operated a snow plowing business for three consecutive winters while he was receiving unemployment insurance benefits. Claimant used his own plowing equipment to remove snow for a number of individuals who compensated him for his services. This proof was sufficient to support the Board’s conclusion that claimant was not totally unemployed, notwithstanding that claimant’s plowing activities were sporadic and generated little income (see, Matter of DiPietro [Commissioner of Labor], 250 AD2d 916). Finally, although claimant testified at the hearing that other individuals performed the plowing services using his equipment, this testimony conflicted with claimant’s statements to the local unemployment office and created a credibility issue for the Board to resolve (see, Matter of Grimard [Sweeney], 228 AD2d 852, lv dismissed 89 NY2d 861).

White, J. P., Peters, Spain, Carpinello and Graffeo, JJ., concur. Ordered that the decision is affirmed, without costs.