Opinion
June 10, 1976
Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 2, 1975, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner holding claimant ineligible to receive benefits because he was not totally unemployed and charging him with an overpayment of $1,292 in benefits ruled recoverable. The record contains ample evidence that claimant was actively engaged as a 50% partner in a music publishing enterprise and, accordingly, the board could properly conclude that claimant was not totally unemployed during the period at issue (Matter of Carasso [Catherwood], 23 A.D.2d 935). Similarly, the board could find that the benefits claimant accepted had not been received in good faith and were, therefore, recoverable (Matter of Teitlebaum [Catherwood], 26 A.D.2d 711). While claimant, on December 11, 1974, indicated in response to a question on the original claim form that he was engaged in a business or other activity that "brings in or may bring in income", at no time from then until May 7, 1975 did he reveal he engaged in any activity for the publishing enterprise despite almost continued daily effort on its behalf. Instead he certified that for each and every day during this entire period he did no work "at all" when the board could find he knew such was not, in fact, the case. Decision affirmed, without costs. Koreman, P.J., Sweeney, Mahoney, Main and Reynolds, JJ., concur.