IN RE: the Claim of Peter J. PINTO (1999)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 28, 1997, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Shortly after filing an original claim for unemployment insurance benefits on January 15, 1996, claimant and a partner decided to open a restaurant and they signed a partnership agreement on January 29, 1996 to that effect.   In the next few weeks, claimant, inter alia, signed a lease for the restaurant, filed a certificate of doing business, hired a manager, purchased equipment and opened a business checking account.   In March 1996, claimant telephoned the Department of Labor stating that he planned to start a restaurant and that he wanted to apply for the Self Employment Assistance Program.   Although claimant and a Department of Labor representative exchanged messages, claimant made no further inquiries, never filled out an application for the program, was never advised that he was qualified to participate and, in fact, the record indicates that he was ineligible.   Claimant continued to perform services for the restaurant during the period he certified that he was not working and, while he did not draw a salary, he was reimbursed for the loans he made to the business.   Claimant ceased certifying for unemployment insurance benefits after the restaurant formally opened in May 1996 and the Unemployment Insurance Appeal Board ultimately found claimant ineligible to receive unemployment insurance benefits on the ground that he was not totally unemployed after January 29, 1996.   Additionally, the Board charged him with a recoverable overpayment of benefits and assessed a forfeiture penalty of benefit days upon finding that claimant had made willful false statements to obtain benefits.

We affirm.   Substantial evidence supports the Board's assessment of claimant's credibility and the inferences drawn from the evidence presented (see, Matter of Falco [Sweeney], 246 A.D.2d 711, 667 N.Y.S.2d 499, lv. denied 92 N.Y.2d 815, 683 N.Y.S.2d 759, 706 N.E.2d 747), as well as the separate finding of willful misrepresentation (see, Matter of Le Pore [Sweeney], 248 A.D.2d 783, 784, 669 N.Y.S.2d 691).   Notably, claimant admitted reading the information booklet distributed by the local unemployment office and was aware that activities taken in preparation of starting up a business could constitute employment or self-employment (see, id.).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.