In re the Claim of Toman

305 A.D.2d 836, 759 N.Y.S.2d 589, 2003 N.Y. App. Div. LEXIS 5508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 2003
• Status: Published

Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 9, 2002, which, upon reconsideration, adhered to its prior decision ruling, inter alia, that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

Claimant collected unemployment insurance benefits after twice being laid off from her employment as the manager of her spouse’s house painting business, a company that operated out of the couple’s residence. During the two benefit periods at issue, claimant admittedly continued to write checks on behalf of the business and occasionally used funds from its bank account to defray her personal expenses. Under these circumstances, we find there to be substantial evidence to support the Unemployment Insurance Appeal Board’s conclusion that claimant was not totally unemployed within the meaning of the Labor Law (see Matter of Ours [Commissioner of Labor], 268 AD2d 669 [2000]; Matter of Higgins [Troy Bldg.— Commissioner of Labor], 253 AD2d 934 [1998]). Given that claimant certified that she had performed no work during the benefit periods, we further find that substantial evidence supports the Board’s determination that she made willful false statements to obtain benefits, charging her with a recoverable overpayment of benefits and the loss of benefit days (see Matter of Karpien [Commissioner of Labor], 297 AD2d 855, 856 [2002]; Matter of Bartfeld [Sweeney], 239 AD2d 642, 643 [1997]). The remaining contentions raised by claimant have been reviewed and found to be without merit.

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