IN RE: the Claim of Susan A. LAPCZYNSKI (2007)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 9, 2006, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

After losing her full-time employment, claimant filed a claim for unemployment insurance benefits and, thereafter, received benefits totaling $7,695.   It is undisputed that, prior to filing a claim for benefits and for at least some period of time after she had received benefits, claimant engaged in certain self-employment activities, essentially working on computer-generated presentations for businesses.   The Unemployment Insurance Appeal Board found that claimant was ineligible to receive benefits because she was not totally unemployed during the period in question, charged her with a recoverable overpayment of benefits and reduced her right to receive future benefits by 152 effective days on the basis that she had made willful misrepresentations to obtain benefits.   Claimant appeals.

 A claimant who performs activities in furtherance of an ongoing business is not totally unemployed even if such activities are minimal so long as he or she stands to benefit financially from the continued existence of the business (see Matter of Swan [Commissioner of Labor], 40 A.D.3d 1295, 1295, 835 N.Y.S.2d 774 [2007];  Matter of Frith [Commissioner of Labor], 40 A.D.3d 1230, 1230, 836 N.Y.S.2d 323 [2007] ).   Whether a claimant is totally unemployed is a factual question left to the Board for resolution (see Matter of Moreira-Brown [Commissioner of Labor], 36 A.D.3d 987, 988, 826 N.Y.S.2d 512 [2007] ).   Claimant contends that she did not actually engage in self-employment activities related to her own business-and profit from those activities-during the months when she was receiving benefits.   This argument is unavailing, however, since the issue of whether a claimant's business is profitable is not dispositive (see id.).   In this case, substantial evidence supports the Board's determination that claimant engaged in some activities related to her business during the first 4 1/212 1/212 months of 2003, when she was receiving benefits, and that she received a tax benefit related to her business for 2003.   Accordingly, we find no basis to disturb the Board's determination that claimant was not totally unemployed during the period when she was receiving benefits (see Matter of Lawrence [Commissioner of Labor], 39 A.D.3d 980, 980-981, 834 N.Y.S.2d 366 [2007];  Matter of Brinn [Commissioner of Labor], 38 A.D.3d 1080, 1081, 831 N.Y.S.2d 772 [2007];  Matter of Koenes [Commissioner of Labor], 30 A.D.3d 873, 874, 817 N.Y.S.2d 713 [2006] ).

ORDERED that the decision is affirmed, without costs.