IN RE: the Claim of Andrew S. ROSTOLDER (2004)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 28, 2003, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant, a sheet metal draftsman by trade, was ineligible to receive unemployment insurance benefits because he was not totally unemployed during the period he was receiving benefits in 2002.   The record establishes that claimant makes frog sculptures which he displays for sale at a cooperative gallery.   Claimant pays an annual fee of $2,400 to be a member of the gallery and display his work.   When claimant sells a sculpture, he collects sales tax.   He also volunteers as a treasurer for the gallery and is responsible for picking up the mail and signing the business checks to pay the gallery's bills.   The record establishes that claimant filed a schedule C with his 2001 tax return deducting the gallery membership fee and taking a net business loss.   Although claimant did not create or sell any sculptures during the period in which he was receiving benefits, he nevertheless stood to gain financially by the continued display of his work at the gallery and the deductions on his tax returns (see Matter of Helm [Commissioner of Labor], 304 A.D.2d 943, 757 N.Y.S.2d 152 [2003];  Matter of Gorman [Commissioner of Labor], 288 A.D.2d 597, 732 N.Y.S.2d 288 [2001];  Matter of Kingsley-Agurkis [Commissioner of Labor], 273 A.D.2d 597, 709 N.Y.S.2d 666 [2000] ).

ORDERED that the decision is affirmed, without costs.