IN RE: the Claim of Thomas A. BAPTISTA

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Thomas A. BAPTISTA, Appellant. Commissioner of Labor, Respondent.

Decided: July 28, 2005

Before:  MERCURE, J.P., PETERS, ROSE, LAHTINEN and KANE, JJ. Thomas A. Baptista, Rockville Centre, appellant pro se. Eliot Spitzer, Attorney General, New York City (Linda D. Joseph of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 21, 2003, which, inter alia, ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Claimant filed a claim for unemployment insurance benefits, effective February 4, 2002, and received benefits from February 17, 2002 through July 28, 2002 totaling $8,349.   It was later discovered that, during this same time period, claimant worked as an assistant building superintendent.   As a result, he was deemed ineligible to receive benefits on the basis that he was not totally unemployed.   He was also charged with a recoverable overpayment of benefits and his right to receive future benefits was reduced on the ground that he made a willful misrepresentation to obtain benefits.   Claimant now appeals.

 A claimant must be totally unemployed within the meaning of Labor Law § 591(1) in order to receive unemployment insurance benefits (see Matter of Smith [Commissioner of Labor], 8 A.D.3d 744, 745, 777 N.Y.S.2d 771 [2004];  Matter of Silverstein [Sweeney], 236 A.D.2d 757, 758, 654 N.Y.S.2d 203 [1997] ).   Claimant here conceded that he worked as an assistant building superintendent while he received unemployment insurance benefits.   There was evidence that his responsibilities included daily garbage collection, handling emergencies in the superintendent's absence and being on call to help, as needed, with various building-related matters.   In return, he was paid $50 per month and resided in a rent-reduced apartment.   In view of this, substantial evidence supports the Board's decision that claimant was not totally unemployed.   Furthermore, given claimant's admitted failure to report these activities when certifying for benefits, we find no reason to disturb the Board's finding that he made a willful misrepresentation (see Matter of Smith [Commissioner of Labor], supra at 745, 777 N.Y.S.2d 771;  Matter of Alm [Commissioner of Labor], 302 A.D.2d 777, 779, 754 N.Y.S.2d 779 [2003] ).

ORDERED that the decision is affirmed, without costs.

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