In re the Claim of Masciopinto

Appellate Division of the Supreme Court of New York

In re the Claim of Masciopinto

252 A.D.2d 891, 676 N.Y.S.2d 325, 1998 N.Y. App. Div. LEXIS 8697

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

DecidedJuly 30, 1998

StatusPublished

Cited by5 cases

This text of 252 A.D.2d 891 (In re the Claim of Masciopinto) 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 Masciopinto, 252 A.D.2d 891, 676 N.Y.S.2d 325, 1998 N.Y. App. Div. LEXIS 8697 (N.Y. Ct. App. 1998).

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Opinions

—Crew III, J.

Appeal from a decision of the Unemployment In[892]*892surance Appeal Board, filed March 17, 1997, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

In August 1990, claimant and her husband started a computer sales business, with $15,000 coming from claimant and $50,000 from the proceeds of a second mortgage placed upon their jointly owned home. Claimant served as secretary, treasurer and office manager for the business. Claimant testified that she resigned on October 28, 1993 due to a lack of work and relinquished her secretary/treasurer title. The Unemployment Insurance Appeal Board denied claimant’s subsequent application for unemployment insurance benefits, finding that claimant was not totally unemployed. This appeal by claimant ensued.

We conclude that the record as a whole lacks substantial evidence to support the Board’s conclusion that claimant was performing any corporate activities during the relevant time period (compare, Matter of Cumella [Careers Thru Educ.— Hudacs], 209 AD2d 747). Although claimant apparently retained authority to sign business checks until February 1994, her testimony that she did not perform any business-related activities after she resigned her position was uncontroverted. Specifically, as to claimant’s check-signing authority, her spouse testified that claimant never signed checks for the business. While the Board was free to resolve credibility issues against claimant, its apparent disbelief of claimant’s testimony regarding her resignation does not negate the complete lack of evidence in the record to support the conclusion that claimant performed any work or activities for the business during the applicable time period. In this regard, neither claimant’s application for benefits, the business principal questionnaire she completed nor the 1993 tax returns, upon which the Board relied, contradict claimant’s testimony that she performed no services for the business after October 1993. Accordingly, the Board’s decision cannot stand.

Cardona, P. J., White and Peters, JJ., concur.

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—Crew III, J.

Appeal from a decision of the Unemployment In[892]*892surance Appeal Board, filed March 17, 1997, which ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

In August 1990, claimant and her husband started a computer sales business, with $15,000 coming from claimant and $50,000 from the proceeds of a second mortgage placed upon their jointly owned home. Claimant served as secretary, treasurer and office manager for the business. Claimant testified that she resigned on October 28, 1993 due to a lack of work and relinquished her secretary/treasurer title. The Unemployment Insurance Appeal Board denied claimant’s subsequent application for unemployment insurance benefits, finding that claimant was not totally unemployed. This appeal by claimant ensued.

We conclude that the record as a whole lacks substantial evidence to support the Board’s conclusion that claimant was performing any corporate activities during the relevant time period (compare, Matter of Cumella [Careers Thru Educ.— Hudacs], 209 AD2d 747). Although claimant apparently retained authority to sign business checks until February 1994, her testimony that she did not perform any business-related activities after she resigned her position was uncontroverted. Specifically, as to claimant’s check-signing authority, her spouse testified that claimant never signed checks for the business. While the Board was free to resolve credibility issues against claimant, its apparent disbelief of claimant’s testimony regarding her resignation does not negate the complete lack of evidence in the record to support the conclusion that claimant performed any work or activities for the business during the applicable time period. In this regard, neither claimant’s application for benefits, the business principal questionnaire she completed nor the 1993 tax returns, upon which the Board relied, contradict claimant’s testimony that she performed no services for the business after October 1993. Accordingly, the Board’s decision cannot stand.

Cardona, P. J., White and Peters, JJ., concur.

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Bluebook (online)

252 A.D.2d 891, 676 N.Y.S.2d 325, 1998 N.Y. App. Div. LEXIS 8697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-masciopinto-nyappdiv-1998.

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