Hyperlawhypertext legal database In re the Claim of Pasinski 141 A.D.3d 989

← Cases

In re the Claim of Pasinski

141 A.D.3d 989 Court N.Y. App. Div. Decision date 2016-07-21 English

Judges Lahtinen, J.P., Garry, Rose, Devine and Mulvey, JJ., concur.

Contents

Majority

p. 989
In the Matter of the Claim of Gregory A. Pasinski, Jr., Appellant. Commissioner of Labor, Respondent.
[35 NYS3d 594]—

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 8, 2015, which ruled, among other things, that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Claimant is the owner of a charter fishing business he started in 2011 that operates seasonally. From October 2013 until May 2014, claimant kept his boat in storage and did not resume taking customers out on fishing charters until July and August 2014. However, when he filed his claim for unemployment insurance benefits in December 2013, he did not disclose the fishing business on his application. As a result, the Department of Labor issued initial determinations that found him ineligible to receive benefits because he was not totally unemployed, charged him with a recoverable overpayment and forfeiture penalty based on his willful misrepresentation, and imposed a civil penalty. Following a hearing, an Administrative Law Judge concluded that claimant was eligible to receive benefits for the period December 16, 2013 through May 17, 2014 and modified the initial determinations accordingly. The Unemployment Insurance Appeal Board, however, reversed this decision and sustained the initial determinations. Claimant now appeals.

We affirm. It is well settled that 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

p. 990
benefit financially from its continued operation” (Matter of Romero [Commissioner of Labor], 121 AD3d 1147 , 1148 [2014]; see Matter of McCann [Commissioner of Labor], 117 AD3d 1259 , 1260 [2014]). Notably, this rule has been applied to seasonal businesses as well as those that operate throughout the year (see Matter of Smith [Commissioner of Labor], 53 AD3d 908 , 909 [2008]; Matter of Ibrahim [Commissioner of Labor], 45 AD3d 1128 , 1129 [2007]). Here, claimant performed a number of activities related to his fishing business after he filed his unemployment insurance claim. Specifically, he maintained a business website, communicated with prospective customers through email and by telephone, paid various business-related expenses, renewed insurance, placed an advertisement in a local circulation, leased a boat slip and prepared the boat for operation. These activities were clearly intended to further the profitability of the business. Accordingly, we find that substantial evidence supports the Board’s finding that claimant was not totally unemployed during the time period in question. Furthermore, insofar as claimant admittedly failed to disclose the fishing business when applying for benefits and chose not to read portions of the unemployment insurance handbook advising him of his obligation in this regard, substantial evidence also supports the Board’s finding that he made a willful misrepresentation to obtain benefits (see Matter of Davis [Commissioner of Labor], 50 AD3d 1281 , 1282 [2008]; Matter of Nigro [Commissioner of Labor], 47 AD3d 1040 , 1042 [2008]).

Lahtinen, J.P., Garry, Rose, Devine and Mulvey, JJ., concur.

Ordered that the decision is affirmed, without costs.

Cases cited