Opinion
May 1, 1967
Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board (1) holding claimant, a salesperson, ineligible to receive benefits effective June 22, 1964 through May 30, 1965 on the ground she was not totally unemployed, (2) charging her with an overpayment of $1,250 in benefits ruled to be recoverable, and (3) holding that claimant willfully made false statements to obtain benefits by reason of which a forfeiture of 80 effective days was imposed as a penalty in reduction of claimant's future benefit rights. Claimant's husband operated a retail store selling cooked foods. In 1963 when he moved his business he incorporated. Claimant was designated secretary treasurer of the corporation and authorized to sign corporate checks. She worked as a saleslady in the store and was laid off during alleged slack periods when she filed for the benefits in question. During this period she occasionally signed checks and visited the store where the testimony indicates she relieved her husband. Upon applying for benefits she stated on a form in answer to a question that she had not been an officer or a stockholder in a corporation by which she was employed or for which she performed services. Claimant contends that her designation as an officer and signatory of checks was merely for convenience and that she was never a stockholder. It is not necessary that participants in family corporations be stockholders in order to be ineligible for unemployment benefits ( Matter of Reitman [ Catherwood], 27 A.D.2d 678; Matter of Vasquenz [ Catherwood], 26 A.D.2d 859), and what constitutes "total employment" is a factual decision for the board ( Matter of Newman [ Catherwood], 24 A.D.2d 1042), which if supported by substantial evidence shall be final (Labor Law, § 623). The record before us contains substantial evidence to sustain the determinations and that benefits previously received must be repaid ( Matter of Marder [ Catherwood], 16 A.D.2d 303). Decision affirmed, without costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.