Opinion
2014-05-1
In the Matter of the Claim of Josephine S. BOSCARINO, Appellant. Commissioner of Labor, Respondent.
Schell & Schell, P.C., Fairport (George A. Schell of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.
Schell & Schell, P.C., Fairport (George A. Schell of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.
Before: STEIN, J.P., McCARTHY, ROSE and EGAN JR., JJ.
McCARTHY, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 22, 2013, which, among other things, ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.
After losing her job at a commercial bank, claimant filed an original claim for unemployment insurance benefits, effective November 2008, and a subsequent claim, effective November 2009. She received various types of compensation, including regular unemployment insurance benefits, extended unemployment insurance benefits, emergency unemployment compensation benefits ( seePub. L. 110–252, tit. IV, § 4001 et seq., 122 U.S. Stat. 2323) and federal additional unemployment compensation benefits ( see26 U.S.C. § 3304) during a 19–month period ending in October 2010. In March 2009, she started a business selling fashion accessories and engaged in various activities in furtherance of the business, including leasing commercial space, until around the time that the lease expired in September 2011. She did not disclose these activities to the Department of Labor when certifying for benefits.
Claimant filed a certificate with the Monroe County Clerk formally discontinuing the business in March 2012.
The Department of Labor issued initial determinations that found claimant ineligible to receive benefits because she was not totally unemployed during the time periods at issue, charged her with recoverable overpayments of the different types of benefits she received and imposed forfeiture penalties reducing her right to receive future benefits on the ground that she made willful misrepresentations to obtain benefits. Following a hearing, an Administrative Law Judge (hereinafter ALJ) modified the initial determinations and found, among other things, that claimant lacked total unemployment only on those dates that she actually performed activities related to the business, and overruled the initial determinations in this respect. The Unemployment Insurance Appeal Board disagreed with the ALJ and concluded that claimant lacked total unemployment during all of the time periods at issue. The Board further found that claimant was properly charged with recoverable overpayments for benefits received in the total amount of $31,592.50 and that the forfeiture penalties amounting to a total reduction of 600 days were properly imposed. Claimant now appeals.
The Board modified the initial determination by finding claimant ineligible effective March 31, 2009 rather than March 23, 2009, with a related modification of the penalty.
Initially, whether a claimant is totally unemployed and thereby entitled to receive unemployment insurance benefits is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence ( see Matter of Antoniou [Commissioner of Labor ], 64 A.D.3d 853, 853, 881 N.Y.S.2d 681 [2009]:Matter of Bernard [Commissioner of Labor ], 53 A.D.3d 1006, 1006, 863 N.Y.S.2d 279 [2008] ). A claimant who performs activities on behalf of a business, even if minimal, will not be considered to be totally unemployed so long as he or she potentially stands to gain a financial benefit from the continued operation of the business ( see Matter of Burnette [Commissioner of Labor ], 98 A.D.3d 785, 786, 949 N.Y.S.2d 811 [2012];Matter of Germanow [Commissioner of Labor ], 56 A.D.3d 923, 924, 868 N.Y.S.2d 329 [2008] ). Significantly, it does not matter if the business is profitable ( see Matter of Bessy [Commissioner of Labor ], 57 A.D.3d 1048, 1049, 868 N.Y.S.2d 380 [2008].
Here, claimant performed a number of activities in furtherance of the business between March 2009 and October 2010. Specifically, she filed a certificate of doing business, leased commercial space, hired a contractor to alter the space, obtained a sign permit, displayed a sign, obtained business cards, secured a phone line, opened a business checking account, paid business-related expenses, made trips to New York City to purchase merchandise, obtained a New York tax identification number, sold merchandise and took business losses on her personal income tax returns. Claimant's activities were by no means minimal, even though she limited access to her merchandise and did not make sales on a regular basis. Rather, in the overall scheme of cultivating the business, claimant's activities were continuous and meaningful, potentially leading to financial reward. Accordingly, we find that substantial evidence supports the Board's finding that claimant was not totally unemployed during the period that she was receiving benefits, notwithstanding the fact that the business was not then generating a profit ( see Matter of Martz [Commissioner of Labor ], 273 A.D.2d 578, 578, 708 N.Y.S.2d 760 [2000];Matter of Trippodi [Sweeney ], 232 A.D.2d 715, 716, 648 N.Y.S.2d 49 [1996] ). The cases relied upon by claimant do not compel a contrary conclusion as they are factually distinguishable from the case at hand ( compare Matter of Lewis [Commissioner of Labor ], 106 A.D.3d 1313, 967 N.Y.S.2d 140 [2013];Matter of Battaglia [Commissioner of Labor ], 8 A.D.3d 937, 779 N.Y.S.2d 266 [2004];Matter of Alm [Commissioner of Labor ], 302 A.D.2d 777, 754 N.Y.S.2d 779 [2003] ).
Turning to the issue of willfulness, a claimant is responsible to accurately report and disclose any business activity when certifying for benefits ( see Matter of Bernard [Commissioner of Labor ], 53 A.D.3d at 1006, 863 N.Y.S.2d 279;Matter of Albarella [Commissioner of Labor ], 307 A.D.2d 573, 574, 762 N.Y.S.2d 307 [2003] ). “Notably, ‘there is no acceptable defense to making a false statement’ ... and a claim that the misrepresentation was unintentional is not sufficient” (Matter of Bowlby [Commissioner of Labor ], 31 A.D.3d 939, 940, 818 N.Y.S.2d 661 [2006], quoting Matter of Silverstein [Sweeney ], 236 A.D.2d 757, 758, 654 N.Y.S.2d 203 [1997] [citations omitted]; see Matter of Bernard [Commissioner of Labor ], 53 A.D.3d at 1006, 863 N.Y.S.2d 279). Here, claimant admitted that she did not disclose her business activities when certifying for benefits and indicated that she did not know that she had to do so, even though she did not read the unemployment insurance handbook or ask the Department of Labor's representatives for advice. She maintained that she relied upon the advice of her certified public accountant, who told her that she did not have to report her business activity because the business was not generating income. Inasmuch as reliance upon erroneous advice is not an acceptable excuse ( see Matter of Keegan [Commissioner of Labor ], 306 A.D.2d 740, 740, 760 N.Y.S.2d 906 [2003];Matter of Scott [New York Law School–Commissioner of Labor ], 257 A.D.2d 871, 872, 684 N.Y.S.2d 71 [1999],lv. denied93 N.Y.2d 808, 691 N.Y.S.2d 2, 712 N.E.2d 1245 [1999] ), we find no reason to disturb the Board's imposition of recoverable overpayments and forfeiture penalties based upon claimant's willful misrepresentations. Therefore, we affirm the Board's decision.
ORDERED that the decision is affirmed, without costs.