In re the Claim of Di Giacomo — 183 A.D.2d 1095

Majority

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In the Matter of the Claim of Deborah J. Di Giacomo, Appellant. John F. Hudacs, as Commissioner of Labor, Respondent.

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 13, 1991, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

Whether a claimant is totally unemployed and whether there has been a willful misrepresentation are questions of fact for the Unemployment Insurance Appeal Board to resolve (see, Matter of Arnold [Roberts], 104 AD2d 685 , 686). Here, claimant does not dispute that she wrote and signed checks on behalf of her husband’s corporation on 43 separate days during the benefit period. Because this type of checkwriting activity has been held to constitute employment for purposes of the Labor Law (see, Matter of Gonyo [Roberts], 124 AD2d 884 ), the Board’s determination that claimant was not totally unemployed is supported by substantial evidence (see, Matter of Barber [Roberts], 121 AD2d 767 , 768). Furthermore, given

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the amount of her checkwriting, there is also substantial evidence to support the Board’s conclusion that claimant’s negative answer on her claim form with respect to whether she was engaged in any business that does or may bring in income amounted to a willful false statement (see, Matter of O'Leary [Roberts], 93 AD2d 915 ).

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

Cases cited

In re the Claim of Gonyo 124 AD2d 884 N.Y. App. Div. 1986-11-13 p. 1095
In re the Claim of Barber 121 AD2d 767 N.Y. App. Div. 1986-06-05 at 768 p. 1095
In re the Claim of O'Leary 93 AD2d 915 N.Y. App. Div. 1983-04-07 p. 1096