In re the Claim of Reitman

27 A.D.2d 678, 275 N.Y.S.2d 912, 1967 N.Y. App. Div. LEXIS 5091

Opinion

Reynolds, J.

Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board determining that claimant was ineligible for benefits effective May 16, 1966 for lack of total unemployment (Labor Law, § 522). Claimant, a butcher with 35 years experience, was associated with the employer, a meat packaging enterprise from its inception in 1962 until May 10, 1966 when the business “temporarily” suspended operation due to a fire which destroyed the premises on which the business was located. The record reveals that claimant’s wife, who worked full time for the Board of Education, was the sole stockholder but was not employed by the business, that rather claimant as president, manager and the sole possessor of authority to draw checks actually ran the enterprise and that claimant, despite efforts to find other employment, intended to return to his position with the corporation as soon as its business premises were rebuilt by the owner. Furthermore, there is evidence that he continued his position and in fact drew checks on behalf of the corporation after the date of the fire. The construction and application given to the term “ total unemployment ” by the board must be upheld unless it can “ be said to lack rational basis or to be arbitrary or capricious ” (Matter of Newman [Catherwood], 24 A D 2d 1042). On the present record such is clearly not the ease (Matter of Vasquenz [Catherwood], 26 A D 2d 859): Decision affirmed, without costs. Gibson, P. J., Herlihy, Aulisi and Staley, Jr., JJ., concur with Reynolds, J.