In re the Claim of Ours

268 A.D.2d 669, 700 N.Y.S.2d 584, 2000 N.Y. App. Div. LEXIS 139

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 2, 1998, which ruled, inter alla, that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

While receiving unemployment insurance benefits, claimant was involved in the operation of his wife’s restaurant. Evidence in the record discloses that claimant wrote 8 to 10 checks per week for the business and assisted in ordering supplies, inventory and accepting deliveries. Inasmuch as claimant and his wife commingled the business funds with their personal funds, claimant stood to gain financially from these activities. In these circumstances, there is substantial evidence to support the Unemployment Insurance Appeal Board’s conclusion that claimant was not totally unemployed (see, Matter of Sheinfeld [Sweeney], 245 AD2d 943; Matter of Earle-Wilson [Hudacs], 210 AD2d 718).

The decision of the Administrative Law Judge that claimant made willful misrepresentations to obtain benefits was not appealed to the Board and thus is unpreserved for our consideration (see, Matter of Maldonado [Commissioner of Labor], 260 AD2d 885).

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