In re the Claim of Wahler

233 A.D.2d 739, 650 N.Y.S.2d 358, 1996 N.Y. App. Div. LEXIS 12059

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 28, 1995, which ruled that claimant was ineligible to receive unemployment insurance benefits because, inter alia, he was not totally unemployed.

Claimant was employed as an ironworker until he was laid off in August 1992. The Board found claimant ineligible to receive unemployment insurance benefits, assessed the penalty of 124 benefit days and charged claimant with a recoverable overpayment of $7,350. At the hearing, claimant testified that he and his wife executed a bond and mortgage in conjunction with the purchase of a commercial building that became the sole asset of Chadwick Development, Inc., a subchapter S corporation in which claimant’s wife was the sole shareholder and claimant the president. While claimant did not receive a salary from the corporation, the corporation’s checks were signed by him by means of a signature stamp that he had authorized. It further appears that claimant purchased supplies used to maintain the building and that he took a deduction for the building’s depreciation on his personal income tax return. Claimant conceded that he had not reported his activities on behalf of the corporation when he applied for benefits. Based on this testimony, we find that substantial evidence supports the Board’s finding that claimant was not totally unemployed at the time he was collecting benefits and that he made willful misrepresentations to obtain said benefits (see, Matter of Eg buna [Hudacs], 198 AD2d 577, 578; Matter of Gross [Hudacs], 195 AD2d 742).

Mikoll, J. P., Mercure, White, Casey and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.