IN RE: the Claim of James R. BUNTING

Reset A A Font size: Print

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

IN RE: the Claim of James R. BUNTING, Appellant. Commissioner of Labor, Respondent.

Decided: April 23, 2009

Before:  MERCURE, J.P., ROSE, MALONE JR., STEIN and McCARTHY, JJ. James R. Bunting, Victor, appellant pro se. Andrew M. Cuomo, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 28, 2008, which, among other things, denied claimant's application to reopen and reconsider a prior decision.

 By decision filed May 28, 2008, the Unemployment Insurance Appeal Board denied claimant's application to reopen and reconsider its November 3, 2006 decision ruling that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.   Because claimant's application to reopen was made within the 30-day period during which the Board's November 2006 decision could have been appealed, the instant appeal brings up for review the merits of the Board's original decision (see Matter of Yastrzemski [Commissioner of Labor], 32 A.D.3d 1123, 1124, 821 N.Y.S.2d 490 [2006], lv. dismissed 8 N.Y.3d 896, 832 N.Y.S.2d 899, 865 N.E.2d 8 [2007] ).   In this regard, substantial evidence supports the Board's finding that claimant, a 31% shareholder and president of a metal tubing corporation, was not totally unemployed.  “It is well settled that a corporate officer who performs activities in connection with the winding up of a corporation will not be considered totally unemployed, even if his or her activities in this regard are minimal” (Matter of DeAngelo [Commissioner of Labor], 54 A.D.3d 468, 468, 863 N.Y.S.2d 292 [2008] [internal quotation marks and citations omitted] ).   Here, the record reflects that during the relevant time period, claimant wrote business-related checks, participated in the sale of certain assets and equipment, routinely checked the mail and assisted in cleaning out the building where the corporation was housed (compare Matter of Salomone [Commissioner of Labor], 34 A.D.3d 1037, 1038, 826 N.Y.S.2d 757 [2006] ).   The record further reveals that claimant did not report any of these activities when certifying for unemployment insurance benefits. Under such circumstances, the findings that claimant was not totally unemployed and that he made a willful misrepresentation regarding his employment status-and, thus, should be charged with a recoverable overpayment and an effective loss of days-were supported by substantial evidence (see Labor Law §§ 594, 597[4];  Matter of Blankenship [Commissioner of Labor], 286 A.D.2d 818, 819, 730 N.Y.S.2d 259 [2001] ).   Therefore, we decline to disturb the Board's decision.

ORDERED that the decision is affirmed, without costs.

Copied to clipboard