Opinion
October 20, 1969
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 9, 1968, holding claimant ineligible for benefits effective November 28, 1966 because of a lack of total unemployment (Labor Law, § 522), charging him with an overpayment of $811.25, ruled to be recoverable, and holding that he willfully misrepresented to obtain benefits for which a forfeiture of 51 effective days was imposed (Labor Law, § 594). What constitutes "total unemployment" is a factual decision and thus if the board's determination is supported by substantial evidence, it cannot be disturbed ( Matter of Weiss [ Catherwood], 28 A.D.2d 577). The record contains substantial evidence that during the period in question appellant was active in the operation of a store selling photographic equipment and supplies and, in addition, performing studio and photographic work in partnership with his father. The board could properly find that he was engaged in self-employment and not totally unemployed. ( Matter of Emanuel [ Catherwood], 29 A.D.2d 798.) "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)" ( Matter of Carasso [ Catherwood], 23 A.D.2d 935, 936). Likewise, the question of willful representation is factual and since there is substantial evidence to support the board's determination, it must be upheld. ( Matter of Tiber [ Catherwood], 31 A.D.2d 704. ) Decision affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Greenblott, J.