In re the Claim of Schatzberg

Appellate Division of the Supreme Court of New York

In re the Claim of Schatzberg

32 A.D.2d 710, 300 N.Y.S.2d 165, 1969 N.Y. App. Div. LEXIS 3921

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

DecidedMay 21, 1969

StatusPublished

Cited by7 cases

This text of 32 A.D.2d 710 (In re the Claim of Schatzberg) 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 Schatzberg, 32 A.D.2d 710, 300 N.Y.S.2d 165, 1969 N.Y. App. Div. LEXIS 3921 (N.Y. Ct. App. 1969).

Pincite

Opinion

Reynolds, J.

Appeal from a decision of the Unemployment Insurance Appeal Board holding claimant ineligible for benefits effective November 1, 1965 because of a lack of total unemployment (Labor Law, § 522), charging him with an overpayment of $470.25 ruled to be recoverable, and holding that he willfully misrepresented to obtain benefits for which a forfeiture of 57 effective days was imposed (Labor Law, § 594). What constitutes “ total. unemployment ” is a factual decision and thus if the board’s determination is supported by substantial evidence it cannot be disturbed (e.g., Matter of Weiss [Catherwood], 28 A D 2d 577). The instant record contains substantial evidence [711]*711that during the period in question claimant was operating an electronic service and installation business and thus the board could properly find that he was engaged in self-employment and not totally unemployed (e.g., Matter of Emanuel [Catherwood], 29 A D 2d 798; Matter of Newman [Catherwood], 24 A D 2d 1042). “ The fact that this was merely a sideline while he was regularly employed or that it was sporadic and involved only a limited investment is not controlling. Nor is the fact that the endeavor was nonremunerative during the period for which benefits are claimed (Matter of Bailey [Catherwood], 18 A D 2d 727) or claimant did not realize that his activities constituted employment (Matter of Bunzl [Lubin], 1 A D 2d 46).” (Matter of Carasso [Catherwood], 23 A D 2d 935, 936.) Similarly, the question of willful misrepresentation is factual and since there is substantial evidence to support the board’s determination it must be upheld (e.g., Matter of Tiber [Catherwood], 31 A D 2d 704; Matter of Tiano [Catherwood], 27 A D 2d 879). Decision affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Cooke and Greenblott, JJ., concur in memorandum by Reynolds, J.

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Reynolds, J.

Appeal from a decision of the Unemployment Insurance Appeal Board holding claimant ineligible for benefits effective November 1, 1965 because of a lack of total unemployment (Labor Law, § 522), charging him with an overpayment of $470.25 ruled to be recoverable, and holding that he willfully misrepresented to obtain benefits for which a forfeiture of 57 effective days was imposed (Labor Law, § 594). What constitutes “ total. unemployment ” is a factual decision and thus if the board’s determination is supported by substantial evidence it cannot be disturbed (e.g., Matter of Weiss [Catherwood], 28 A D 2d 577). The instant record contains substantial evidence [711]*711that during the period in question claimant was operating an electronic service and installation business and thus the board could properly find that he was engaged in self-employment and not totally unemployed (e.g., Matter of Emanuel [Catherwood], 29 A D 2d 798; Matter of Newman [Catherwood], 24 A D 2d 1042). “ The fact that this was merely a sideline while he was regularly employed or that it was sporadic and involved only a limited investment is not controlling. Nor is the fact that the endeavor was nonremunerative during the period for which benefits are claimed (Matter of Bailey [Catherwood], 18 A D 2d 727) or claimant did not realize that his activities constituted employment (Matter of Bunzl [Lubin], 1 A D 2d 46).” (Matter of Carasso [Catherwood], 23 A D 2d 935, 936.) Similarly, the question of willful misrepresentation is factual and since there is substantial evidence to support the board’s determination it must be upheld (e.g., Matter of Tiber [Catherwood], 31 A D 2d 704; Matter of Tiano [Catherwood], 27 A D 2d 879). Decision affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Cooke and Greenblott, JJ., concur in memorandum by Reynolds, J.

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Bluebook (online)

32 A.D.2d 710, 300 N.Y.S.2d 165, 1969 N.Y. App. Div. LEXIS 3921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-schatzberg-nyappdiv-1969.

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