Opinion
May 24, 1965
Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board denying claimant benefits on the grounds that he was not totally unemployed within the meaning of section 522 Lab. of the Labor Law. Claimant asserts that the board's finding that he was not totally unemployed is unwarranted. Of course, this determination is factual and must be sustained if supported by substantial evidence. Here there is evidence that claimant was, at the time he claims to have been totally unemployed, engaged in free-lance work as a business consultant. He maintained an office and storage space, had a telephone answering service and a listing in the telephone directory, and advertised in a trade publication. The fact that this was merely a sideline while he was regularly employed or that it was sporadic and involved only a limited investment is not controlling. Nor is the fact that the endeavor was nonremunerative during the period for which benefits are claimed ( Matter of Bailey [ Catherwood], 18 A.D.2d 727) or that claimant did not realize that his activities constituted employment ( Matter of Bunzl [ Lubin], 1 A.D.2d 46). On the instant record the board could properly find that claimant was not totally unemployed. Claimant also seeks to contend here that he is entitled to benefits for two other periods, but these issues were not raised before the board and thus cannot be reviewed here. Decision affirmed, without costs. Gibson, P.J., Herlihy, Aulisi and Hamm, JJ., concur.