State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 2, 2014 518441 

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In the Matter of the Claim of

JUAN E. ROMERO,

Appellant.

MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,

Respondent.

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Calendar Date: August 4, 2014

Before: Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

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Juan E. Romero, New York City, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City

(Marjorie S. Leff of counsel), for respondent.

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Appeal from a decision of the Unemployment Insurance Appeal

Board, filed March 18, 2013, which, among other things, ruled

that claimant was ineligible to receive unemployment insurance

benefits because he was not totally unemployed.

Claimant had been employed in the fashion industry for a

number of years and, following a break in employment, filed an

application for unemployment insurance benefits in December 2010. 

In September 2011, claimant formed a corporation to import and

sell clothing manufactured overseas, and he thereafter performed

a number of activities in connection with this business that he

did not disclose when certifying for benefits. The Department of

Labor subsequently issued initial determinations finding that

claimant was ineligible to receive benefits because he was not

totally unemployed and imposing a recoverable overpayment and a

forfeiture penalty based upon claimant's willful

misrepresentation to obtain benefits. These determinations were
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upheld by an Administrative Law Judge and later by the

Unemployment Insurance Appeal Board. Claimant now appeals. 

Whether a claimant is totally unemployed is a factual issue

for the Board to decide, and its determination will be upheld if

supported by substantial evidence (see Matter of Lewis

[Commissioner of Labor], 106 AD3d 1313, 1313 [2013]; Matter of

Bernstein [Commissioner of Labor], 67 AD3d 1287, 1287 [2009]). A

claimant who performs activities on behalf of an ongoing business

may not be considered totally unemployed, even if such activities

are minimal or the business is not profitable, if he or she

stands to benefit financially from its continued operation (see

Matter of Lewis [Commissioner of Labor], 106 AD3d at 1313; Matter

of Dupey [Commissioner of Labor], 79 AD3d 1508, 1508-1509

[2010]). Here, claimant incorporated the business, opened a

business checking account, created a business logo, started

developing a business website, distributed business cards,

attended seminars and trade shows and had apparel samples made by

overseas manufacturers, all in furtherance of establishing a

lucrative business. Notwithstanding the fact that claimant was

not receiving income from the business, substantial evidence

supports the Board's decision that he was not totally unemployed

(see Matter of Siegel [Commissioner of Labor], 43 AD3d 1224, 1225

[2007]). Furthermore, given that claimant read the provisions of

the unemployment insurance handbook relating to self-employment,

but represented that he was not working when certifying for

benefits, we find no reason to disturb the Board's finding that

he made a willful misrepresentation – even if it was

unintentional (see Matter of Bernard [Commissioner of Labor], 53

AD3d 1006, 1007 [2008]).

Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ., concur.
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court