In re the Claim of Kelly

Appellate Division of the Supreme Court of New York

In re the Claim of Kelly

250 A.D.2d 918, 672 N.Y.S.2d 263, 1998 N.Y. App. Div. LEXIS 5378

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 7, 1998

StatusPublished

Cited by3 cases

This text of 250 A.D.2d 918 (In re the Claim of Kelly) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of Kelly, 250 A.D.2d 918, 672 N.Y.S.2d 263, 1998 N.Y. App. Div. LEXIS 5378 (N.Y. Ct. App. 1998).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 21, 1997, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the Unemployment Insurance Appeal Board ruling that claimant was not totally unemployed at the time he was receiving unemployment insurance benefits and charging him with a recoverable overpayment. Claimant is the owner of Kelly Klean, a seasonal lawn care business for which he obtains customers through word-of-mouth and advertising. This Court has held that a claimant who owns an active business is not totally unemployed, even if the business in question has produced no income, is in a seasonal lull or is not in full operation during the relevant period (see, Matter of Valvano [Sweeney], 236 AD2d 729; Matter of Monro [Sweeney], 235 AD2d 885). Contrary to claimant’s assertion, the record supports the Board’s conclusion that claimant stood to gain financially from the continuing operation of the business (see, Matter of Firsching [Hudacs], 192 AD2d 1011).

Crew III, J. P., White, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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—Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 21, 1997, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the Unemployment Insurance Appeal Board ruling that claimant was not totally unemployed at the time he was receiving unemployment insurance benefits and charging him with a recoverable overpayment. Claimant is the owner of Kelly Klean, a seasonal lawn care business for which he obtains customers through word-of-mouth and advertising. This Court has held that a claimant who owns an active business is not totally unemployed, even if the business in question has produced no income, is in a seasonal lull or is not in full operation during the relevant period (see, Matter of Valvano [Sweeney], 236 AD2d 729; Matter of Monro [Sweeney], 235 AD2d 885). Contrary to claimant’s assertion, the record supports the Board’s conclusion that claimant stood to gain financially from the continuing operation of the business (see, Matter of Firsching [Hudacs], 192 AD2d 1011).

Crew III, J. P., White, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

250 A.D.2d 918, 672 N.Y.S.2d 263, 1998 N.Y. App. Div. LEXIS 5378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-kelly-nyappdiv-1998.

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