In re the Claim of Tommasi

Appellate Division of the Supreme Court of New York

In re the Claim of Tommasi

244 A.D.2d 740, 664 N.Y.S.2d 389, 1997 N.Y. App. Div. LEXIS 11766

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

DecidedNovember 20, 1997

StatusPublished

Cited by1 cases

This text of 244 A.D.2d 740 (In re the Claim of Tommasi) 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 Tommasi, 244 A.D.2d 740, 664 N.Y.S.2d 389, 1997 N.Y. App. Div. LEXIS 11766 (N.Y. Ct. App. 1997).

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Opinion

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 26, 1996, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Claimant was employed in the sheet metal industry until he was laid off for lack of work. The record discloses that while he was collecting unemployment insurance benefits, claimant [741]*741formed his own corporation, M & A Metals, Inc., of which claimant was president, a 49% shareholder and the principal employee. The Unemployment Insurance Appeal Board ruled that claimant was ineligible for benefits because he was not totally unemployed and found him guilty of making willful misrepresentations regarding his employment status. Substantial evidence supports the Board’s ruling. This Court has held that a claimant who is a principal in an active corporation is not totally unemployed, even if the corporation is unprofitable (see, Matter of Leban [Sweeney], 233 AD2d 738, lv denied 89 NY2d 811; Matter of Egbuna [Hudacs], 198 AD2d 577, 578). Furthermore, claimant failed to report his activities on behalf of the corporation either when he applied for benefits or during the six months that he received them. As such, substantial evidence supports the Board’s finding that claimant made willful misrepresentations (see, Matter of Rotter [Sweeney], 232 AD2d 800). The Board’s decision is, accordingly, affirmed.

Casey, J. P., Yesawich Jr., Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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—Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 26, 1996, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Claimant was employed in the sheet metal industry until he was laid off for lack of work. The record discloses that while he was collecting unemployment insurance benefits, claimant [741]*741formed his own corporation, M & A Metals, Inc., of which claimant was president, a 49% shareholder and the principal employee. The Unemployment Insurance Appeal Board ruled that claimant was ineligible for benefits because he was not totally unemployed and found him guilty of making willful misrepresentations regarding his employment status. Substantial evidence supports the Board’s ruling. This Court has held that a claimant who is a principal in an active corporation is not totally unemployed, even if the corporation is unprofitable (see, Matter of Leban [Sweeney], 233 AD2d 738, lv denied 89 NY2d 811; Matter of Egbuna [Hudacs], 198 AD2d 577, 578). Furthermore, claimant failed to report his activities on behalf of the corporation either when he applied for benefits or during the six months that he received them. As such, substantial evidence supports the Board’s finding that claimant made willful misrepresentations (see, Matter of Rotter [Sweeney], 232 AD2d 800). The Board’s decision is, accordingly, affirmed.

Casey, J. P., Yesawich Jr., Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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244 A.D.2d 740, 664 N.Y.S.2d 389, 1997 N.Y. App. Div. LEXIS 11766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-tommasi-nyappdiv-1997.

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