In re the Claim of Scheer

Appellate Division of the Supreme Court of New York

In re the Claim of Scheer

33 A.D.2d 1063, 307 N.Y.S.2d 287, 1970 N.Y. App. Div. LEXIS 5563

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

DecidedFebruary 11, 1970

StatusPublished

Cited by5 cases

This text of 33 A.D.2d 1063 (In re the Claim of Scheer) 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 Scheer, 33 A.D.2d 1063, 307 N.Y.S.2d 287, 1970 N.Y. App. Div. LEXIS 5563 (N.Y. Ct. App. 1970).

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Opinion

Greenblott, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 9, 1968, holding claimants ineligible for benefits effective December 26, 1966 because of a lack of total unemployment (Labor Law, § 522), charging them with overpayments, ruled to be recoverable, and holding that they had willfully misrepresented to obtain benefits for which a forfeiture was imposed (Labor Law, § 594). In December, 1966 appellants commenced negotiations for the establishment of a dry cleaning business in which they became the principal stockholders and officers and for which they filed a certificate of incorporation. Shortly thereafter they leased the premises for their enterprise, contracted for the purchase of nearly $36,000 worth of equipment, and opened a corporate bank account. Throughout this period appellants devoted all the necessary time and effort required to establish their business, which was opened to the public on March 15, 1967. The board could thus find that appellants were engaged in self -employment and that they were not totally unemployed (Matter of Czagany [Catherwood], 28 A D 2d 1049). Neither the fact that the endeavor was nonremunerative during the period for which benefits were sought (Matter of Carasso [Catherwood], 23 A D 2d 935, 936), nor the fact that appellants’ enterprise was not actually in operation for this period (Matter of Reitman [Catherwood], 27 A D 2d 678; Matter of Newman [Catherwood], 24 A D 2d 1042) is controlling. Appellants certified that they were totally unemployed, and in light of the foregoing, this could properly be deemed a willful misrepresentation. Questions of “ total unemployment ” and “ willful misrepresentation ” are factual decisions, and the board’s determinations cannot be disturbed where, as here, they are supported by substantial evidence (Matter of Weiss [Catherwood], 28 A D 2d 577; Matter of Reitman [Catherwood], supra). Decision affirmed, without costs. Herlihy, P. J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Greenblott, J.

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Greenblott, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 9, 1968, holding claimants ineligible for benefits effective December 26, 1966 because of a lack of total unemployment (Labor Law, § 522), charging them with overpayments, ruled to be recoverable, and holding that they had willfully misrepresented to obtain benefits for which a forfeiture was imposed (Labor Law, § 594). In December, 1966 appellants commenced negotiations for the establishment of a dry cleaning business in which they became the principal stockholders and officers and for which they filed a certificate of incorporation. Shortly thereafter they leased the premises for their enterprise, contracted for the purchase of nearly $36,000 worth of equipment, and opened a corporate bank account. Throughout this period appellants devoted all the necessary time and effort required to establish their business, which was opened to the public on March 15, 1967. The board could thus find that appellants were engaged in self -employment and that they were not totally unemployed (Matter of Czagany [Catherwood], 28 A D 2d 1049). Neither the fact that the endeavor was nonremunerative during the period for which benefits were sought (Matter of Carasso [Catherwood], 23 A D 2d 935, 936), nor the fact that appellants’ enterprise was not actually in operation for this period (Matter of Reitman [Catherwood], 27 A D 2d 678; Matter of Newman [Catherwood], 24 A D 2d 1042) is controlling. Appellants certified that they were totally unemployed, and in light of the foregoing, this could properly be deemed a willful misrepresentation. Questions of “ total unemployment ” and “ willful misrepresentation ” are factual decisions, and the board’s determinations cannot be disturbed where, as here, they are supported by substantial evidence (Matter of Weiss [Catherwood], 28 A D 2d 577; Matter of Reitman [Catherwood], supra). Decision affirmed, without costs. Herlihy, P. J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Greenblott, J.

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33 A.D.2d 1063, 307 N.Y.S.2d 287, 1970 N.Y. App. Div. LEXIS 5563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-scheer-nyappdiv-1970.

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