Opinion
May 7, 1998
Appeal from the Unemployment Insurance Appeal Board.
Substantial evidence, supports the Unemployment Insurance Appeal Board ruling that claimant was not totally unemployed at the time he was receiving unemployment insurance benefits and charging him with a recoverable overpayment. Claimant is the owner of Kelly Klean, a seasonal lawn care business for which he obtains customers through word-of-mouth and advertising. This Court has held that a claimant who owns an active business is not totally unemployed, even if the business in question has produced no income, is in a seasonal lull or is not in full operation during the relevant period ( see, Matter of Valvano [Sweeney], 236 A.D.2d 729; Matter of Monro [Sweeney], 235 A.D.2d 885). Contrary to claimants assertion, the record supports the Board's conclusion that claimant stood to gain financially from the continuing operation of the business ( see, Matter of Firsching [Hudacs], 192 A.D.2d 1011).
Crew III, J.P., White, Yesawich Jr., Spain and Carpinello, JJ., concur.
Ordered that the decision is affirmed, without costs.