In re the Claim of Geracitano

277 A.D.2d 558, 715 N.Y.S.2d 525, 2000 N.Y. App. Div. LEXIS 11144

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2000
• Status: Published

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 30, 1999, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

Claimant was a seasonal employee of the State Department of Parks and Recreation and would apply for unemployment insurance benefits during her off season. Throughout the year, however, claimant was also an elected councilperson and received a salary including health benefits and the opportunity to participate in the New York State and Local Employees’ Retirement System. As a councilperson, claimant was required to follow up with constituents and perform various other duties. The Unemployment Insurance Appeal Board held that claimant performed services as an elected official more often than she reported and, therefore, was not totally unemployed.

In our view, substantial evidence supports the Board’s ruling that claimant was disqualified from receiving unemployment insurance benefits because she was not totally unemployed (see, Matter of Silverstein [Sweeney], 236 AD2d 757; Matter of Belle [Sweeney], 225 AD2d 826, lv denied 88 NY2d 805). This Court has previously held that a councilperson was not totally unemployed where the proof showed that he received an annual salary for his work as a councilperson, performed a variety of duties in that capacity and was subject to inquiries by his constituents (see, Matter of Silverstein [Sweeney], supra, at 757). Accordingly, claimant was properly denied unemployment insurance benefits.

Cardona, P. J., Crew III, Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.